Opinion
Civil Action No. 3:00-CV-2247-D
February 14, 2003
FINDINGS, CONCLUSIONS, AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE
Pursuant to the provisions of 28 U.S.C. § 636(b), and an Order of the Court in implementation thereof, Defendants' Motion for Summary Judgment ("MSJ") has been referred to the United States Magistrate Judge for hearing, if necessary, and recommendation. Before the Court are the following pleadings:
(1) Defendants Scott Peters, Michael D. Scott, and City of Coppell's Motion for Summary Judgment, filed April 17, 2002;
(2) Brief in Support of Defendants Scott Peters, Michael D. Scott, and City of Coppell's Motion for Summary Judgment, filed April 17, 2002;
(3) Appendix to Defendants Scott Peters, Michael D. Scott, and City of Coppell's Motion for Summary Judgment and Brief in Support Thereof, filed April 17, 2002;
(4) Plaintiff David McCall's Response to Defendants Peters, Scott and City of Coppell's Motion for Summary Judgment, filed June 10, 2002;
(5) Brief in Support of Plaintiff's Response to Defendants Peters, Scott, and City of Coppell's Motion for Summary Judgment, filed June 10, 2002;
(6) Plaintiff's Record of Excerpts, Part I, filed June 10, 2002;
(7) Plaintiff's Record of Excerpts, Part II, filed June 10, 2002;
(8) Plaintiff's Record of Excerpts, Part III, filed June 10, 2002;
(9) Plaintiff's Objection to Defendants Peters, Scott, and City of Coppells Evidence in Support of their Motion for Summary Judgement, filed June 14, 2002; and
(10) Defendants Scott Peters, Michael D. Scott, and City of Coppell's Reply to Plaintiff's Response to Defendants' Motion for Summary Judgment, filed June 24, 2002;
(11) Defendants Peters, Scott, and City of Coppell's Response to Plaintiff's Objections to Defendants' Evidence Offered in Support of Their Motion for Summary Judgment, filed June 24, 2002;
(12) Defendants' Peters, Scott, and City of Coppell's Objections to Plaintiff's Records of Excerpts Offered in Support of Plaintiff's Response to Defendants' Motion for Summary Judgment, filed June 24, 2002.
Having reviewed the pertinent pleadings and the evidence submitted therewith, the Court recommends that the Motion for Summary Judgment be GRANTED, that Defendants' objections to Plaintiff's evidence be OVERRULED as moot, and that Plaintiff's objections to Defendants' evidence be OVERRULED.
I. Background
Plaintiff David Wayne McCall ("McCall"), a pro se litigant, filed this civil rights action pursuant to 42 U.S.C. § 1983 against Scott Peters ("Peters"), Michael D. Scott ("Scott"), and the City of Coppell ("City") on October 12, 2000, based on the investigation and allegedly wrongful arrest of McCall for murder. Specifically, McCall seeks damages from Peters and Scott for false arrest, false imprisonment, civil conspiracy, and perjury, and damages from the City for failure to adequately hire, train, and supervise. Defendants Peters, Scott, and the City move for summary judgment.
Although McCall brought numerous claims against multiple parties in his Complaint, these are the only claims against these defendants surviving dismissal. (Recommendation, Aug. 3, 2001, at 16) (adopted Aug. 28, 2001).
Peters, Scott, and the City have filed objections to portions of McCall's affidavit, the affidavit of McCall's wife, and to additional items offered in support of McCall's response to the summary judgment motion. Because the evidence at issue was not pertinent to the issue of whether Peters and Scott reasonably believed probable cause to exist, the Court did not rely upon this evidence in reaching its conclusions, and the objections should be overruled as moot. McCall objects to Peters' affidavit, Scott's affidavit, and certain documents submitted in support of the motion for summary judgment. The Court has either not considered the evidence to which he objects or concludes that the objections lack merit because the evidence is relevant to the issue of probable cause and has not been shown to be untrustworthy.
On August 13, 1995, Catherine Casler was murdered in the City of Coppell as she went for a walk. (Affidavit of Scott Peters, Appendix to MSJ ("Peters Aff."), at 3, ¶ 5.) An autopsy revealed that Ms. Casler received 17 knife wounds, and that one of those wounds had a maximal depth of penetration of 3 1/2 inches. (Autopsy Report, App. to MSJ at 20, 22.) The autopsy did not indicate that Ms. Casler was sexually assaulted. A witness described seeing a man fighting with Ms. Casler and a 1978 or 1980 dull red pickup truck in the vicinity of the struggle. (Peters Aff. at 3-4, ¶ 6.) The witness worked with a composite artist to produce a sketch of the man. Id.
In June 1998, McCall became the focus of the investigation into Ms. Casler's murder after Peters received a report from a City of Coppell detective; the detective had received information from a Dallas Police Department Rape Squad Crime Analyst regarding a possible connection between McCall and the Casler murder. (Peters Aff. at 4, ¶ 7.) From the Coppell report, Peters learned that McCall pleaded guilty to the June 1989 attempted kidnaping of a Coppell woman. Id. at ¶¶ 7-8. Peters contacted the Coppell woman and showed her the composite sketch of the man seen fighting with Ms. Casler; the woman stated that the sketch looked just like the person who had attempted to abduct her (McCall). (Peters Aff. at 5, ¶ 9.)
Peters contacted the DPD Crime Analyst, who referred him to an Irving detective. (Peters Aff. at 5, ¶ 10.) The Irving detective informed Peters that McCall had confessed to, and been convicted of, the April 1996 sexual assault of an Irving woman, and that he received probation. Id. at ¶ 11. During the April 1996 assault, McCall used a knife with a 3 1/2 inch blade, which Peters believed to be consistent with the weapon used in the Casler murder. Id. Peters also learned about an Indiana rape. Id.
Peters contacted the Indiana police, who informed him that McCall was convicted of raping a female jogger in Indiana in 1978, and that he threatened to kill the victim. (Peters Aff. at 5-6, ¶¶ 11-12.) Further, McCall was also a suspect in an Indiana stabbing murder that had occurred one week prior to the rape, but he was never charged. Id. A witness arriving at the murder scene identified a photograph of McCall, but the District Attorney refused to accept the case because the witness' eyeglasses were knocked off by the fleeing suspect. Id.
Peters again contacted the DPD Crime Analyst, and learned McCall had been arrested for the September 1995 rape of a Dallas woman. (Peters Aff. at 7, ¶ 13.) He had not been tried for the offense because of the prosecutor's inability to find the complaining witness. Id. Peters own investigation revealed that McCall owned a faded red pickup truck, which fit the description given by the Casler witness. Id. at 7, ¶ 14.
Peters subsequently interviewed McCall. (Peters Aff. at 7, ¶ 15.) According to Peters, McCall stated that he had been on a cocaine binge on the relevant date, and that he had gone to see his wife at work to get more money for drugs. Id. Peters also learned that at the time of the Casler murder, McCall's wife worked in Coppell, near where Ms. Casler's body was found. (Peters Aff. at 7-8, ¶ 15.) After McCall gave consent to have his truck searched and provided hair samples, Peters was informed that a hair found in the truck microscopically matched Ms. Casler's hair, and that a hair found on the body sheet was microscopically and microscopically identical to the hair sample provided by McCall. (Peters Aff. at 8-9, ¶¶ 16-20.)
On October 9, 1998, Scott executed an affidavit in support of an arrest warrant to arrest McCall for the Casler murder based on the information provided by Peters. (Peters Aff. at 9-10, ¶ 22; 44-46.) At issue in this case are statements in the affidavit that: (1) McCall owned "a 1976 faded Red Chevrolet pick up truck Texas License Plate HR 8820;" (2) Peters was informed by an Irving police detective that McCall was convicted of aggravated sexual assault and that the weapon used in the assault was "consistent with the type of implement that may have been used to inflict the injuries on Catherine Casler;" (3) in an interview, McCall stated that on the date of the murder, he was on a cocaine binge and visited his wife in Coppell; (4) McCall's wife stated that she was working in Coppell on the date of the murder;(5) a hair found in McCall's truck was "determined to be microscopically similar to Catherine Casler's;" and (6) a "hair found on the bodysheet was a macroscopic and microscopic identical match to the hair standards taken from" McCall. (Affidavit for Arrest Warrant, App. to MSJ at 44-46.) A magistrate made an independent determination that probable cause existed for McCall's arrest for the Casler murder and a warrant was issued. Id. at 46.)
On October 16, 1998, Peters was told that the hair samples on the body sheet failed to match McCall's DNA. (Peters Aff. at 12, ¶ 27.) On November 3, 1998, Peters testified at the examining trial on the murder charge. (Tr. of Examining Trial, Pl.'s Record of Excerpts at 35-50.) At the examining trial, in addition to the facts supporting probable cause, Peters testified that he never had possession of McCall's day planner. Id. at 46. Peters also testified that the hairs found on the body sheet were determined not to be McCall's and that DNA tests were pending on the hairs found in McCall's truck. Id. at 40, 48-49.) The court found probable cause to bind McCall over to the grand jury. Id. at 50. In March 1999, a grand jury was convened to hear evidence in the Casler murder, but the Dallas County District Attorney elected to put on no evidence. (Def.'s Br. at 4.) McCall was no-billed by the grand jury on the murder charge. Id.
McCall was subsequently tried, convicted and sentenced to life in prison for the 1995 rape. (Peters Aff. at 15, ¶ 37.) Subsequently, his probation for the 1996 rape was revoked and he received another life sentence. Id. at ¶ 38.
II. Summary Judgment Standard
Summary judgment is proper when the pleadings and evidence on file show that no genuine issue exists 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). "[T]he substantive law will identify which facts are material." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A genuine issue of material fact exists "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Id. The movant makes such a showing by informing the court of the basis of its motion and by identifying the portions of the record which reveal there are no genuine material fact issues. Celotex Corporation v. Catrett, 477 U.S. 317, 323 (1986). The pleadings, depositions, admissions, and affidavits, if any, must demonstrate that no genuine issue of material fact exists. FED. R. CIV. P. 56(c).
Once the movant makes this showing, the nonmovant 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. Celotex, 477 U.S. at 323-24. To carry this burden, the "opponent must do more than simply show . . . some metaphysical doubt as to the material facts." Matsushita Electric Industrial Co., Ltd. v. Zenith Radio Corporation, 475 U.S. 574, 586 (1986). Instead, the nonmovant must show that the evidence is sufficient to support a resolution of the factual issue in his favor. Anderson, 477 U.S. at 249.
While all of the evidence must be viewed in a light most favorable to the motion's opponent, Anderson, 477 U.S. at 255 ( citing Adickes v. S.H. Kress Company, 398 U.S. 144, 158-59 (1970)), neither conclusory allegations nor unsubstantiated assertions will satisfy the non-movant's summary judgment burden. Little v. Liquid Air Corporation, 37 F.3d 1069, 1075 (5th Cir. 1994) (en banc); Topalian v. Ehrman, 954 F.2d 1125, 1131 (5th Cir.), cert. denied, 506 U.S. 825 (1992). Summary judgment in favor of the movant is proper if, after adequate time for discovery, the motion's opponent fails to establish the existence of an element essential to his case and as to which he will bear the burden of proof at trial. Celotex, 477 U.S. at 322-23.
III. Claims Brought Under 42 U.S.C. § 1983
A. False Arrest and False Imprisonment
McCall brings claims against Peters and Scott for false arrest and false imprisonment. Peters and Scott move for summary judgment on these claims, alleging that probable cause supported McCall's arrest and detention, and that they are entitled to qualified immunity. (Def.'s Br. at 8-16, 22-25.) In his response to the motion for summary judgment, McCall alleges that Peters and Scott intentionally omitted several material facts from the affidavit in support of the arrest warrant and included false and misleading statements. (Pl.'s Br. at 7-8.)
A state official who is sued for a constitutional violation pursuant to § 1983 may assert the affirmative defense of qualified immunity. White v. Taylor, 959 F.2d 539, 544 (5th Cir. 1992) (Fitzwater, J.). Qualified immunity protects government officials performing discretionary functions from suit and liability for civil damages to the extent 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). "The law is deemed to be clearly established if the contours of a right asserted are sufficiently clear that a reasonable official would understand that what he is doing violates that right." White, 959 F.3d at 544. The doctrine protects "all but the plainly incompetent or those who knowingly violate the law." Malley v. Briggs, 475 U.S. 335, 341 (1986). Whether the conduct of which the plaintiff complains violated clearly established law is an essentially legal question. White, 959 F.3d at 544.
To determine whether Peters and Scott are entitled to qualified immunity, the threshold question is whether, on the facts alleged by McCall, a clearly established constitutional right would have been violated. See Saucier v. Katz, 533 U.S. 194, 200 (2001). Assuming the facts alleged by McCall are true, if Peters and Scott did not violate a constitutional right, the Court need inquire no further. Id. at 201. On the other hand, if McCall can show that Peters and Scott did violate his constitutional rights, the Court must then determine whether their conduct was objectively reasonable in light of clearly established law at the time of the challenged conduct. Id.; Glenn v. City of Tyler, 242 F.3d 307, 312 (5th Cir. 2001). "Even if an official's conduct violates a constitutional right, he is entitled to qualified immunity if the conduct was objectively reasonable." McClendon v. City of Columbia, 258 F.3d 432, 438 (5th Cir. 2001).
"The right to be free from arrest without probable cause is a clearly established constitutional right." Mangieri v. Clifton, 29 F.3d 1012, 1016 (5th Cir. 1994). "Probable cause to arrest exists `where the facts and circumstances within (the arresting officers') knowledge and of which they had reasonably trustworthy information (are) sufficient in themselves to warrant a man of reasonable caution in the belief that' an offense has been or is being committed." United States v. Preston, 608 F.2d 626, 632 (5th Cir. 1979) (quoting Draper v. United States, 358 U.S. 307, 313 (1964)). The determination of probable cause must be made, "not with the logic of cold steel, but with a common sense view to the realities of everyday life." United States v. Lee, 962 F.2d 430, 435 (5th Cir. 1992) (citing Brinegar v. United States, 338 U.S. 160, 175 (1949)). No precise formula may be applied to determine probable cause; rather, probable cause exists when the totality of the facts and circumstances within a police officer's knowledge at the moment of arrest are sufficient to cause a reasonable person to conclude that the suspect committed the offense. United States v. Levine, 80 F.3d 129, 132 (5th Cir. 1996). A court must examine the totality of the circumstances to determine whether probable cause existed. Mendenhall v. Riser, 213 F.3d 226, 231 (5th Cir. 2000).
The arresting officer himself need not have personal knowledge of all of the facts. Lee, 962 F.2d at 435. Rather, when officers have communicated, probable cause may rest upon the collective knowledge of the police. Id. "[P]robable cause is the `sum total of layers of information and the synthesis of what police have heard, what they know, and what they observed as trained officers.'" United States v. Shaw, 701 F.2d 367, 376 (5th Cir. 1983) (quoting United States v. Edwards, 577 F.2d 883, 895 (5th Cir. 1978) (en banc)). Probable cause is not to be determined by weighing "[e]ach individual layer of information" but by considering "the `laminated total' of the facts available." Id.
A presumption of validity accompanies an affidavit that supports a search or arrest warrant. Franks v. Delaware, 438 U.S. 154, 171 (1978). An affidavit does not need to contain every detail the affiant knows, if the totality of the circumstances demonstrates probable cause. United States v. Brown, 941 F.2d 1300, 1304 (5th Cir. 1991). In applying for an arrest or search warrant, the affiant need not try the case in front of the magistrate, nor prove the suspect guilty beyond a reasonable doubt of every element of the crime at issue. See United States v. Ventresca, 380 U.S. 102, 107 (1965). The fact of a prior arrest may properly be considered by an officer in making a probable cause determination. United States v. Harris, 403 U.S. 573, 582-83) (1971). Magistrate judges and courts must use common sense and realism to test and interpret affidavits for arrest and search warrants. United States v. May, 819 F.2d 531, 535 (5th Cir. 1987) (quoting Ventresca, 380 U.S. at 108). A reviewing court should pay great deference to the magistrate's ultimate determination of probable cause. Id. In a close case, all doubts should be resolved in favor of the preference to be accorded warrant. United States v. Phillips, 727 F.2d 392, 399 (5th Cir. 1984) (quoting Illinois v. Gates, 462 U.S. 213, 236 n. 10 (1983)).
The standards for search and arrest warrants derive from the same clause of the Fourth Amendment. Hence, the analysis to determine the validity of either is essentially the same. See, e.g., Franks v. Delaware, 438 U.S. 154, 171 (1978).
At the time of McCall's arrest, Peters and Scott had verified that McCall had been convicted of sexual assaults involving female joggers in Indiana and Irving, and that he was accused in a similar sexual assault in Dallas. (Peters Aff. at 5-7, ¶¶ 10-13.) They had verified that McCall had been previously convicted of kidnaping a jogger in Coppell, and that he was suspected of another stabbing murder in Indiana. (Peters Aff. at 4-6, ¶¶ 8, 12.) They believed that the knife used by McCall in the Irving rape was similar in size to the weapon used in the Casler murder. (Peters Aff. at 5, ¶ 11.) They also believed that McCall owned a vehicle similar to the vehicle observed at the time of the Casler murder, and that McCall resembled the composite sketch of the man observed fighting with Ms. Casler shortly before her death. (Peters Aff. at 4-5, 7, ¶¶ 6, 9, 14.) Finally, hairs found in McCall's vehicle were said to appear similar to Ms. Casler's hair and hairs found on the body sheet were said to appear similar to McCall's hair. (Peters Aff. at 8-9, ¶¶ 16-20.) Based on the totality of the circumstances, Peters and Scott had probable cause to believe that McCall committed the Casler murder and to seek the arrest warrant.
McCall alleges that Peters and Scott concealed evidence indicating McCall was not guilty of the Casler murder and used false and misleading statements to influence the magistrate's decision to issue an arrest warrant. (Pl.'s Br. at 7-8.) McCall objects to the fact that the affidavit in support of the arrest warrant did not mention that a witness was unable to identify McCall as Ms. Casler's assailant three years after the murder. He states that the affidavit claims that McCall was convicted of aggravated sexual assault in Irving, Texas when, in fact, he pleaded guilty to sexual assault and received probation. A final adjudication of guilt was entered on May 28, 1999, after his conviction for the 1995 Dallas rape. McCall claims that Peters was not qualified to give an opinion as to the type of weapon used to kill Ms. Casler. McCall also claims that statements made by him and his wife to Peters were falsified in the affidavit. The license plate of McCall's truck was said to be HR8 820 rather than KR8 820. Lastly, McCall complains of the fact that the affidavit included information concerning microscopic hair comparisons which, he states is unreliable and insufficient to support a finding of probable cause.
The evidence McCall claims was intentionally omitted from the affidavit was not clearly exculpatory. Additionally, negligent omissions will not undermine an affidavit. United States v. Martin, 615 F.2d 318, 329 (5th Cir. 1980). Absent evidence of an intentional material misrepresentation or omission in the affidavit, a warrant will not be invalidated. Franks v. Delaware, 438 U.S. 154, 155-156 (1978). Any clerical errors in the affidavit with respect to the license plate number or conviction were collateral and did not make the warrant facially invalid. Although McCall claims that statements attributed to him and to his wife concerning his location in the city of Coppell on the date of the murder were untrue, even absent those statements, the totality of the remaining facts alleged in the affidavit is sufficient to provide probable cause for McCall's arrest. At the time of McCall's arrest in 1998, human hair analysis by microscopic comparison was an accepted and reliable scientific method or technique, the results of which were routinely admitted at trial along with other circumstantial evidence such as blood comparisons. See e.g. Charles v. Smith, 894 F.2d 718 (5th Cir. 1990), cf., McGrew v. Indiana, 682 N.E.2d 1289 (Ind. 1997); Bryan v. Oklahoma, 935 P.2d 338, 359 n. 62 (Okla.Cr. 1997).
Peters and Scott have established their affirmative defense of qualified immunity. Based upon the totality of the circumstances, they had probable cause to believe that McCall committed the Casler murder and to seek the arrest warrant. The fact that later DNA evidence proved that the hairs found in McCall's vehicle and on the body sheet did not implicate McCall does not change the fact that probable cause existed at the time the warrant was issued and executed. Because Peters and Scott did not violate McCall's constitutional rights in seeking the arrest warrant, they are entitled to qualified immunity and their motion for summary judgment should be granted with respect to McCall's § 1983 claims for false arrest and false imprisonment.
B. Civil Conspiracy
McCall claims that Peters and Scott conspired to falsely arrest and detain him in violation of his civil rights. (Pl.'s Br. at 19.) Peters and Scott move for summary judgment on this claim, stating that McCall fails to prove an actual deprivation of his civil rights and there is no evidence of an agreement to violate McCall's rights. (Def.'s Br. at 20-21.)
To prevail on a § 1983 civil conspiracy claim, a plaintiff must show: (1) an agreement to commit an illegal act between the defendant and at least one other person acting under color of state law; and (2) an actual deprivation of the plaintiff's constitutional rights in furtherance of that agreement. Hicks v. Bexar County, 973 F. Supp. 653, 676 (W.D. Tex. 1997) (citations omitted). A bald allegation that a conspiracy exists, unsupported by any factual allegations, is insufficient. Lynch v. Cannatella, 810 F.2d 1363, 9-70 (5th Cir. 1987); see also Green v. State Bar of Tex., 27 F.3d 1083, 1089 (5th Cir. 1994) (stating that a plaintiff is required to allege facts sufficient to suggest an agreement among one or more parties).
As discussed above, McCall failed to show that there was a genuine issue of material fact with respect to his claim that Peters and Scott violated his constitutional rights by arresting and imprisoning him without probable cause. Thus, McCall cannot establish the second element of this cause of action. Additionally, McCall proffers no evidence to establish the first element of his claim, i.e., that Peters and Scott made an agreement to violate his rights. Because Defendants have identified an absence of evidence to support elements of McCall's federal civil conspiracy claim, summary judgment should be granted on this issue.
C. Perjury
McCall alleges that Peters committed perjury in the information he provided to secure the arrest warrant and in his testimony at the examining trial. (Pl.'s Ans. to Magistrate Judge's Questionnaire at 3.); (Pl.'s Br. at 17-18.) Peters asserts that he is entitled to qualified immunity for the statements made in the affidavit and absolute immunity for the statements made before the court. (Def.'s Br. at 16-20.)
1. Search Warrant Affidavit
McCall alleges that Peters misrepresented the facts with respect to his criminal background by stating that McCall had been convicted of aggravated sexual assault in Irving and falsified statements alleged to have been made by McCall and his wife. (Pl.'s Resp. to MSJ at 3-4.)
To survive a motion for summary judgment in a § 1983 action claiming perjury by an arresting officer, a plaintiff must show that a genuine issue of material fact exists as to whether the officer knowingly provided false information to secure the arrest warrant or gave false information in reckless disregard of the truth. Freeman v. County of Bexar, 210 F.3d 550, 553 (5th Cir. 2000) (citing Franks v. Delaware, 438 U.S. 154 (1978)). All disputed inferences must be viewed in the non-movant's favor. Id. The court "must disregard any such properly contested statements in the affidavits and then determine whether the warrant would establish probable cause without the allegedly false information." Id. The plaintiff "must then demonstrate an issue of material fact as to whether any reasonably competent officer possessing the information that each officer had at the time he swore his affidavit could have concluded that a warrant should issue." Id. (citing Malley v. Briggs, 475 U.S. 335 (1986)). If, after considering the totality of circumstances, officers of reasonable competence could disagree on whether a warrant should issue, the defendant is entitled to qualified immunity. Id.
In this case, even absent the allegedly untrue statements attributed to McCall and to his wife concerning his location in the city of Coppell on the date of the murder, the totality of the remaining facts alleged in the affidavit is sufficient to provide probable cause for McCall's arrest. A reasonably competent officer in Peters' position could have concluded that an arrest warrant should issue even without the alleged falsities, omissions, and errors in the affidavit. Therefore, Peters is entitled to qualified immunity for his statements in the affidavit and summary judgment should be granted in his favor on this issue.
2. Testimony
McCall also alleges that Peters perjured himself at the examining trial by stating that he never possessed McCall "s day planner and by falsifying statements allegedly given by McCall and his wife. (Pl.'s Ans. to Magistrate Judge's Questionnaire at 3.) Peters claims he is entitled to absolute immunity for his testimony at the examining trial because police officers who testify at judicial proceedings are entitled to the same absolute immunity from civil liability for perjury as are other witnesses. (Def.'s Br. at 20); see Briscoe v. LaHue, 460 U.S. 325, 342-344 (1983). However, subsequent to the filing of Peters' brief supporting the motion for summary judgment, the Fifth Circuit decided Keko v. Hingle, ___ F.3d. ___, 2003 WL 61241 (5th Cir. Jan. 8, 2003). In Keko, the court stated that absolute immunity was limited to the confines of adversarial judicial proceedings and noted that "an informal, ex parte probable cause hearing is not the type of judicial proceeding for which a witness's testimony would require the full shield of absolute immunity." Id. at 2. The Texas Court of Criminal Appeals has suggested that an examining trial under Article 16.01 of the Texas Code of Criminal Procedure "is a proceeding that does not provide an adequate opportunity for cross-examination." Russell v. Texas, 604 S.W.2d 914, 921 (Tex.Crim.App. 1980). Therefore, because testimony at an examining trial is not entitled to absolute immunity, the Court will determine whether Peters is entitled to qualified immunity, rather than absolute immunity for his allegedly perjurious testimony at the examining trial.
"The traditional and statutory purposes of an examining trial are to determine whether probable cause exists, to set bail, to appoint counsel, and to perpetuate the testimony of witnesses." McBee v. Texas, 981 S.W.2d 694, 697 (Tex.App.-Houston [1 Dist.], 1998). Accordingly, the role of a police officer at an examining trial is analogous to that of an officer seeking an arrest warrant. In both cases, the testimony provided by the officer establishes probable cause for a suspect's arrest and detention. In determining whether Peters is entitled to qualified immunity for his testimony during the examining trial, the Court will use the same standard applicable to qualified immunity determinations with respect to arrest warrants. As noted above, after disregarding the allegedly perjurious statements, the Court must determine whether there existed probable cause to detain McCall and whether a reasonably competent officer in Peters' position could have concluded that there was probable cause. Freeman, 210 F.3d at 553.
The allegedly false statements made by Peters at the examining trial were essentially the same statements made in the affidavit supporting the arrest warrant. Although McCall also alleges that Peters lied about having possessed McCall's day planner, he has not shown how the possession of the day planner affected the probable cause determination. Even absent the alleged perjury, the Court finds that a reasonable officer in Peters' position could have concluded that probable cause existed to detain McCall. Peters is entitled to qualified immunity for his testimony at the examining trial and should be granted summary judgment with respect to McCall's claim of perjury.
D. Failure to Adequately Hire, Train, and Supervise
McCall sued the City of Coppell, alleging that the City engaged in a policy or custom of failing to adequately train its police officers, resulting in McCall's unlawful arrest and detention. (Pl.'s Ans. to Magistrate Judge's Questionnaire at 9.) The City claims it is entitled to summary judgment because McCall fails to allege the essential elements of the cause of action and such a claim is not recognized under state law. (Def.'s Br. at 27-33.)
A city may be liable under § 1983 if the execution of one of its customs or policies deprives a plaintiff of his constitutional rights. Monell v. Dep't of Social Serv., 436 U.S. 658, 691 (1978). However, liability does not attach merely because a city employed a tortfeasor. Id. at 694; Campbell v. City of San Antonio, 43 F.3d 973, 977 (5th Cir. 1995). Municipal liability under § 1983 "is limited to action for which the municipality is actually responsible . . . that is, acts which the municipality has officially sanctioned or ordered." Pembaur v. City of Cincinnati, 475 U.S. 469, 479-80 (1986). A city's policy or custom must be "the moving force of the constitutional violation." Palmer v. City of San Antonio, 810 F.2d 514, 516 (5th Cir. 1987) (quoting Monell, 436 U.S. at 694). A single incident, unaccompanied by supporting history, is not a sufficient basis for inferring a custom or policy unless the actors involved were given official policy-making authority. Worsham v. City of Pasadena, 881 F.2d 1336, 1339-40 (5th Cir. 1989) (citations omitted); see also Palmer, 810 F.2d at 516.
The alleged custom or policy must be adopted by the municipality's governing body before a municipality may be held liable. See Bennett v. City of Slidell, 728 F.2d 762, 767 (5th Cir. 1984) (en banc). "Official policy" is defined as:
1. A policy statement, ordinance, regulation, or decision that is officially adopted and promulgated by the municipality's 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 municipal policy. Actual or constructive knowledge of such custom must be attributable to the governing body of the municipality or to an official to whom that body had delegated policy-making authority. Actions of officers or employees of a municipality do not render the municipality liable under § 1983 unless they execute official policy as above defined.Webster v. City of Houston, 735 F.2d 838, 841 (5th Cir.) (per curiam), aff'd in relevant part, 739 F.2d 993 (5th Cir. 1984) (en banc); Johnson v. Moore, 958 F.2d 92, 94 (5th Cir. 1992) (citing Bennett, 735 F.2d at 862).
To survive summary judgment, McCall must point to evidence of persistent, repeated, and constant violations of constitutional rights by virtue of the City's alleged failure to adequately train its police officers. See Wassum v. City of Bellaire, 861 F.2d 453, 455 (5th Cir. 1988); see also Languirand v. Hayden, 717 F.2d 220, 227-28 (5th Cir. 1983). McCall fails to provide any summary judgment evidence that the city's policymakers deliberately chose an inadequate training program. See Oklahoma City v. Tuttle, 471 U.S. 808, 823 (1985) ("[I]t is . . . difficult in one sense even to accept the submission that someone pursues a `policy' of `inadequate training,' unless evidence be adduced which proves that the inadequacies resulted from conscious choice-that is, proof that the policymakers deliberately chose a training program which would prove inadequate."). In support of his claim, McCall asserts that the City has a policy of conducting unrecorded interviews, failing to require a high ranking officer to review and verify evidence presented in seeking a warrant, and making arrests prior to ordering and obtaining DNA evidence. (Pl.'s Br. at 21-22.) None of the alleged policies complained of rise to the level of constitutional violations. While McCall claims that in his case these alleged policies resulted in his unlawful arrest and imprisonment, he fails to point to any evidence of "a pattern ofsimilar incidents in which citizens were injured or endangered by intentional or negligent police misconduct." Monell, 436 U.S. at 694. Additionally, McCall has failed to provide any evidence that the actions complained of were officially adopted policies or persistent, widespread practices. McCall has not adduced any evidence of persistent, repeated, and constant violations of constitutional rights. Because no evidence in the record shows that the City engaged in a policy or custom of failing to adequately train its officers, the City's motion for summary judgment on McCall's § 1983 claims for failure to properly hire, train, and supervise should be granted.
III. State Law Claims
After reviewing McCall's Complaint, the Magistrate Judge's Questionnaire, and the Recommendation dated Aug. 3, 2001, it is unclear whether McCall has any surviving state law claims. However, because all but one of McCall's claims could have been brought under both federal and state law, and the parties briefed state law claims, the Court will address any possible remaining state law claims.
Texas does not recognize a cause of action for civil perjury. See Kale v. Palmer, 791 S.W.2d 628, 632 (Tex.App.-Beaumont, 1990); Horlock v. Horlock, 614 S.W.2d 478, 486 (Tex.Civ.App.-Houston [14th Dist.], 1981).
A. Pendent Jurisdiction
When all federal claims are eliminated from a case prior to trial, the general rule is for the federal court to decline to exercise jurisdiction over pendent state law claims. Thomas v. Redford, 2002 WL 484651, *7 (N.D. Tex., Mar. 26, 2002) (Fitzwater, J.) (quoting McClelland v. Gronwaldt, 155 F.3d 507, 519 (5th Cir. 1998). However, the rule is "neither mandatory nor absolute." Smith v. Amedisys Inc., 298 F.3d 434, 447 (5th Cir. 2002) (quoting Batiste v. Island Records, Inc., 179 F.3d 217, 227 (1999)). In determining whether to retain jurisdiction over the state law claims, the court considers the provisions of 28 U.S.C. § 1367 (c) and issues of judicial economy, convenience, fairness, and comity. Jones v. Adam's Mark Hotel, 840 F. Supp. 66, 69 (S.D. Tex. 1993).
Section. § 1367(c) states:
The district courts may decline to exercise supplemental jurisdiction over a claim under subsection (a) if —
(1) the claim raises a novel or complex issue of State law,
(2) the claim substantially predominates over the claim or claims over which the district court has original jurisdiction,
(3) the district court has dismissed all claims over which it has original jurisdiction, or
(4) in exceptional circumstances, there are other compelling reasons for declining jurisdiction.
McCall's claims of false arrest and false imprisonment, civil conspiracy, and failure to adequately supervise, train, and hire do not involve novel or complex issues of state law. Because the Court recommends granting summary judgment on McCall's federal claims, any remaining state law claims now predominate. Additionally, the Court finds no "exceptional circumstances" exist which provide compelling reasons to decline jurisdiction.
However, the factors of judicial economy, convenience, fairness, and comity weigh in favor of retaining jurisdiction. The case has been pending for over two years and only two months remain before trial, any state law claims are virtually identical to the federal claims, the Court is familiar with the merits of McCall's claims and has spent a substantial amount of time reviewing the pleadings and researching the legal issues involved, and all parties have expended time and effort in presenting the merits of the case to the Court. See Amedisys Inc., 298 F.3d at 447 (exercising pendent jurisdiction where case had been pending almost three years, extensive discovery had been done, there was little left to do before trial, and the trial court had devoted many hours to the case and thus had ""substantial familiarity with the merits of the case'"). Further, this case involves a pro se prisoner with limited resources as well as government officials and entities. Finally, it is unclear whether any state causes of action remain. Accordingly, the Court finds that the principles of judicial economy, convenience, and fairness to the parties weigh heavily towards the retention of jurisdiction over McCall's remaining pendent state law claims, if any.
B. False Arrest and False Imprisonment
McCall sued Peters and Scott for false arrest and false imprisonment. Peters and Scott move for summary judgment on this claim, alleging that probable cause supported McCall's arrest and detention and that they are entitled to official immunity. (Def.'s Br. at 8-16, 22-25.) In his response, McCall alleges that Peters and Scott intentionally omitted several material facts from the affidavit in support of the arrest warrant and included false and misleading statements. (Pl.'s Br. at 7-8.)
Official immunity is an affirmative defense, requiring an official seeking summary judgment to conclusively prove all elements of the defense. Univ. of Houston v. Clark, 38 S.W.3d 578, 580 (Tex. 2000). Government officials are entitled to official immunity under Texas law: "(1) for the performance of discretionary duties; (2) within the scope of the employee's authority; (3) provided the employee acts in good faith." Id. The analysis required for making an official immunity determination under Texas law is similar to that required for qualified immunity under § 1983, with the exception that the plaintiff is not required to show the violation of a clearly established constitutional right. Instead, "official immunity hinges on whether the official's activities were undertaken in `good faith,' that is, whether they were objectively reasonable." Hart v. O'Brien, 127 F.3d 424, 450 (5th Cir. 1997) (citing City of Lancaster v. Chambers, 883 S.W.2d 650, 653 (Tex. 1994)), aborgation on other grounds recognized by Spivey v. Robertson, 210 F.3d 550 (5th Cir. 2000).
An action is discretionary if it involves personal deliberation, decision, and judgment. Chambers, S.W.2d at 654. The determination of if, how, and when to arrest a person is a discretionary act. Dent v. City of Dallas, S.W.2d 114, 117 (Tex.App.-Dallas, 1986). An action is within the scope of a government employee's authority if it occurs while the employee is discharging an assigned duty. Chambers, 883 S.W.2d at 658. In seeking and executing the arrest warrant for McCall, Scott and Peters were performing a discretionary duty and acting within the scope of their authority.
The Court has previously found that under the totality of the circumstances known to them at the time, Scott and Peters had probable cause to seek an arrest warrant for McCall. Thus, their actions were objectively reasonable and were undertaken in good faith. Because Scott and Peters established all of the elements of the affirmative defense of official immunity and McCall provided no summary judgment evidence disputing their entitlement to official immunity, they should be granted summary judgment on the state law claims of false arrest and false imprisonment.
C. Civil Conspiracy
McCall claims that Peters and Scott conspired to falsely arrest and detain him in violation of his civil rights. (Pl.'s Br. at 19.) Peters and Scott assert that they are entitled to summary judgment on this claim, because McCall did not prove a violation of his civil rights and there is no evidence of an agreement. (Def.'s Br. at 20-21.)
Under Texas law, civil conspiracy is "a combination by two or more persons to accomplish an unlawful purpose or to accomplish a lawful purpose by unlawful means. The essential elements are: (1) two or more persons; (2) an object to be accomplished; (3) a meeting of minds on the object or course of action; (4) one or more unlawful, overt acts; and (5) damages as the proximate result." Massey v. Armco Steel Co., 652 S.W.2d 932, 934 (Tex. 1983) (citations omitted). Because McCall provides no summary judgment evidence establishing that Peters and Scott had a meeting of minds which resulted in an unlawful act, summary judgment should be granted on the state law claim of civil conspiracy.
D. Failure to Adequately Supervise, Hire, and Train
McCall claims the City engaged in a policy or custom of failing to adequately train its police officers, resulting in McCall's unlawful arrest and detention. (Pl.'s Ans. to Magistrate Judge's Questionnaire at 9.) The City asserts that it is entitled to summary judgment because McCall fails to allege the essential elements of the cause of action and such a claim is not recognized under state law. (Def.'s Br. at 27-33.)
"A municipality, as a political subdivision of the state, is not liable for the acts or conduct of its officers or employees unless the municipality's common law immunity is waived by the Texas Tort Claims Act." Chambers, 883 S.W.2d at 658. The Texas Tort Claims Act ("TTCA") provides in pertinent part:
A governmental unit in the state is liable for:
(1) property damage, personal injury, and death proximately caused by the wrongful act or omission or the negligence of an employee acting within his scope of employment if:
(A) the property damage, personal injury, or death arises from the operation or use of a motor-driven vehicle or motor-driven equipment; and
(B) the employee would be personally liable to the claimant according to Texas law; and
(2) personal injury and death so caused by a condition or use of tangible personal or real property if the governmental unit would, were it a private person, be liable to the claimant according to Texas law.
TEX. CIV. PRAC. REM. CODE § 101.021. The TTCA "waives governmental immunity in three general areas: use of publicly-owned vehicles, premises defects, and injuries arising from conditions or use of property." Brown v. Montgomery County Hosp. Dist., 905 S.W.2d 481, 484 (Tex.App.-Beaumont, 1995).
As McCall has failed to allege an injury arising under one of the three areas of municipal liability recognized by the TTCA, his state law claim that the City engaged in a policy or custom of failing to adequately train its police officers resulting in McCall's unlawful arrest and detention is without merit. Accordingly, summary judgment should be granted to the City on this issue.
IV. Recommendation
For the foregoing reasons, the Court RECOMMENDS that Defendants' Motion for Summary Judgment should be GRANTED.
SO RECOMMENDED on this 14th day of February, 2003.
INSTRUCTIONS FOR SERVICE AND NOTICE OF RIGHT TO APPEAL/OBJECT
Pursuant to Title 28, United States Code, Section 636(b)(1), any party who desires to object to these findings, conclusions and recommendation must file and serve written objections within ten (10) days after being served with a copy. A party filing objections must specifically identify those findings, conclusions or recommendation to which objections are being made. The District Court need not consider frivolous, conclusory or general objections. A party's failure to file such written objections to these proposed findings, conclusions and recommendation shall bar that party from a de novo determination by the District Court. See Thomas v. Arn, 474 U.S. 140, 150 (1985); Perales v. Casillas, 950 F.2d 1066, 1070 (5th Cir. 1992). Additionally, any failure to file written objections to the proposed findings, conclusions and recommendation within ten (10) days after being served with a copy shall bar the aggrieved party from appealing the factual findings and legal conclusions of the Magistrate Judge that are accepted by the District Court, except upon grounds of plain error. Douglass v. United Servs. Auto. Ass'n, 79 F.3d 1415, 1428-29 (5th Cir. 1996) (en banc).