Rolen v. City of Brownfield

Full title: APRIL RENEA ROLEN, KARLA ROLEN CLARK, and L.D. CLARK, Plaintiffs, v. THE…

Court: United States District Court, N.D. Texas, Lubbock Division

Date published: Nov 23, 2004

Civil Action No. 5:03-CV-304-C (N.D. Tex. Nov. 23, 2004)

Opinion

Civil Action No. 5:03-CV-304-C.

November 23, 2004

MEMORANDUM OPINION AND ORDER

SAMUEL CUMMINGS, District Judge

BEFORE THIS COURT for consideration is the Motion for Summary Judgment (Docket No. 34) filed by Plaintiff APRIL RENEA ROLEN ("April Rolen")on August 6, 2004.¹ This Court further considered the Response to same and Brief in Support, together with Appendix, filed by Defendants THE CITY OF BROWNFIELD, TEXAS, RAFAEL TORRES, AND OTHER EMPLOYEES AND UNKNOWN OFFICERS ("Defendants"), on September 8, 2004.²

1 Plaintiff April Renea Rolen's motion is in reality a motion for partial summary judgment, as it does not seek summary judgment on the claims asserted by the other plaintiffs, Karla Rolen Clark and L.D. Clark.

2 On September 21, 2004, Plaintiffs jointly filed a reply, styled as Plaintiffs' Response to Defendants' Brief in Support of Defendants Objections and Response to Plaintiff April Renea Rolens' Motion for Summary Judgment. Defendants filed a Motion and Brief to Strike the Plaintiffs' Reply Brief in Support of Plaintiff April Renea Rolen's Motion for Summary Judgment (Docket No. 61), together with Appendix, on October 4, 2004. Because Plaintiffs' Reply was filed without leave of the Court, this Court did not consider it. See http://www.txnd.uscourts.gov/judges/scummings_req.html ¶ II.B., Requirements for District Judge Sam R. Cummings. Accordingly, the Court did not consider Defendants' Motion to Strike nor did it consider Plaintiffs' response to Defendants' Motion to Strike, which Plaintiffs' incorrectly styled as Plaintiffs' Motion and Brief in Response to Defendants' Motion and Brief to Strike the Plaintiffs' Reply in Support of Plaintiff April Renea Rolen's Motion for Summary Judgment, together with Appendix in Support, filed on October 13, 2004.

Also before this Court for consideration is Defendants' Motion for Summary Judgment on the Issue of Qualified Immunity (Docket No. 35) and Brief in Support, together with Appendix, filed on August 7, 2004. Plaintiffs, APRIL RENEA ROLEN, KARLA ROLEN CLARK, and L.D. CLARK (jointly "Plaintiffs"), filed no Response to same, but the Court did consider Plaintiffs' Motion Pursuant to Rule 12(f) of F.R.C.P. to Strike Defendants' Motion for Summary Judgement (Docket No. 46), and Brief in Support, filed on September 16, 2004. The Court also considered Defendants' Response to same and Motion to Strike Unverified Statements and Unauthenticated "Evidentiary" Documents of the Plaintiffs in Support of Their Motion to Strike (Docket No. 65) and Brief in Support, together with Appendix, filed with this Court on October 6, 2004. The Court did not consider Plaintiffs' reply to same, titled Plaintiffs' Response and Breif [sic] to Defendants' Response and Brief to the Plaintiffs [sic] Motion to Strike the Defendants' Motion for Summary Judgment and [sic] the Issue of Qualified Immunity and Defendants' Motion and Brief to Strike Unverified Statements and Unauthorized "Evidentiary" Documents of the Plaintiffs in Support of Their Motion to Strike, together with Appendix, filed without leave of the Court on October 19, 2004.³

3 This reply is also in response to Defendants' Motion to Strike listed as Docket No. 75. The Court here notes once again Plaintiffs' propensity to ignore the Court's local rules, which require leave of the Court for replies and sur-replies. See http://www.txnd.uscourts.gov/judges/scummings_req.html ¶ II.B. Requirements for District Judge Sam R. Cummings.

Also before this Court for consideration is Defendants' Motion to Dismiss the Claims of Plaintiff L.D. "Chick" Clark (Which Are Unrelated to His Claims Involving High Weeds/Code Enforcement) for Lack of Jurisdiction (Docket No. 47) and Brief in Support, together with Appendix, filed on September 20, 2004, and Plaintiffs' Response to same, together with Appendix, filed on September 30, 2004. Before the Court for consideration also is Defendants' Objection and Motion and Brief to Strike Plaintiffs' Unverified Statements and "Evidence" Contained Within Their Response Relating to Defendants' Motion to Dismiss for Lack of Jurisdiction (Docket No. 75), filed on October 18, 2004. The Court also considered Plaintiffs' Response to Defendants' Objections and Motion and Brief to Strike Plaintiffs' Unverified Statements and "Evidence" Contained Within Their Response Relating to Defendants' Motion to Dismiss for Lack of Jurisdiction, together with Appendix, filed on October 22, 2004.

The Court also considered Defendants' Motion for Severance Pursuant to Federal Rule of Civil Procedure 21 (Docket No. 52), together with Appendix, filed on September 23, 2004, and Plaintiffs' Response to same, together with Appendix, filed on September 30, 2004.

In addition, the Court considered Plaintiffs' Motion to File an Amended Complaint (Docket No. 63),⁴ together with Appendix, filed on October 5, 2004, and Defendants' Response to same and Brief in Support, together with Appendix, filed on October 7, 2004. The Court did not consider Plaintiffs' Reply to Defendants' Response and Brief to Plaintiffs' Motion to File an Amended Complaint, together with Appendix, filed without leave of the Court on October 14, 2004. Finally, also before this Court is Defendants' Motion in Limine and Brief in Support (Docket No. 83), filed with this Court on November 15, 2004.

4 Styled as "Plaintiffs' Proposal to Amend Plaintiffs' Original Petition and to Add Paragraph XXI to Plaintiffs' Original Petition Pursuant to Federal Rules of Civil Procedure, Rule 15.1."

I. FACTUAL BACKGROUND

Plaintiffs complain of three separate incidents involving each of them and the City of Brownfield ("Brownfield" or "the City") and various City officials or police officers. As a result of these incidents, Plaintiffs filed a lawsuit on December 3, 2003, alleging individual causes of action pursuant to 42 U.S.C. § 1983 for violations of their respective Fourth, Fifth, and Fourteenth Amendment constitutional rights by the City, Police Officer Raphael Torres ("Torres"), and several other unknown employees and officers of the City.⁵ The first incident involves the allegedly unlawful "wiring" of Plaintiff April Rolen and her use in an undercover drug-sting operation run by the Llano Estacado Drug Task Force in December of 2000 and again in May of 2001. Plaintiffs claim that April Rolen was sixteen years old at the time of the drugsting operation and therefore not an adult. Further, Plaintiffs L.D. Clark, who is April Rolen's stepfather, and Karla Clark, her mother, claim that they never gave consent for her use in such an operation.

The second incident involves a warrant issued for the arrest of Plaintiff L.D. Clark for violation of a City ordinance concerning weed control on private property. Plaintiff L.D. Clark claims the warrant was issued on October 17, 2002, that it lacked probable cause, and that he was subsequently arrested sometime in May of 2003 for the violation. Plaintiff L.D. Clark further alleges that the City Police Chief Roy Rice, Police Officer Mathis, and two unidentified city employees conspired to build a criminal case against him in order to pressure him to refrain from criticizing the City. The City denies that he was ever arrested.

The third incident concerns the arrest, allegedly without probable cause, of Plaintiff April Rolen by Officer Torres on September 27, 2003, and the subsequent impounding of her vehicle, although the vehicle was ultimately returned to her possession. In addition to these incidents, Plaintiffs appear to complain of a failure of the City to investigate and prosecute the rape of April Rolen. They also make several claims involving conspiracy connected with some of the events related above.

On July 8, 2004, this Court ordered the parties to submit motions for summary judgment relating solely to the issue of qualified immunity, with both parties timely filing cross-motions.

II. STANDARD

Summary judgment is appropriate only if "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any," when viewed in the light most favorable to the non-moving party, "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." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247 (1986) (internal quotes omitted). A dispute about a material fact is "genuine" if the evidence is such that a reasonable jury could return a verdict for the non-moving party. Id. at 248. In making its determination, the court must draw all justifiable inferences in favor of the non-moving party. Id. at 255.

The moving party bears the burden of proof on the claims or defenses under which it moves for summary judgment, and must come forward with evidence that establishes "beyond peradventure all the essential elements of the claim or defense." Fontenont v. Upjohn Co., 780 F.2d 1190, 1194 (5th Cir. 1986). Once the moving party has initially shown "that there is an absence of evidence to support the non-moving party's case," Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986), the non-movant must come forward, after adequate time for discovery, with significant probative evidence showing a triable issue of fact. FED. R. CIV. P. 56(e); State Farm Life Ins. Co. v. Gutterman, 896 F.2d 116, 118 (5th Cir. 1990). "[T]he nonmovant must go beyond the pleadings and designate specific facts in the record showing that there is a genuine issue for trial. Neither conclusory allegations nor unsubstantiated assertions will satisfy the nonmovant's burden. . . . Moreover, pleadings are not summary judgment evidence." Wallace v. Texas Tech Univ., 80 F.3d 1042, 1047 (5th Cir. 1996) (internal quotations and citations omitted).

Conclusory allegations and denials, speculation, improbable inferences, unsubstantiated assertions, and legalistic argumentation are not adequate substitutes for specific facts showing that there is a genuine issue for trial. Douglass v. United Servs. Auto. Ass'n, 79 F.3d 1415, 1429 (5th Cir. 1996) (en banc); SEC v. Recile, 10 F.3d 1093, 1097 (5th Cir. 1993). To defeat a properly supported motion for summary judgment, the non-movant must present more than a mere scintilla of evidence. See Anderson, 477 U.S. at 251. Rather, the non-movant must present sufficient evidence upon which a jury could reasonably find in the non-movant's favor. Id.

III. ANALYSIS

A. Plaintiffs' Motion for Summary Judgment

Plaintiff April Rolen filed her Motion for Summary Judgment on the issue of qualified immunity on August 6, 2004. In her motion she argues that Brownfield Police Officers Raphael Torres and David Cox, along with other unknown defendants, violated her constitutional rights when they participated in a drug-sting operation in which she was caused to go into a dangerous situation wearing a "wire" with the knowledge that she was only fifteen years old. The only evidentiary document attached to her motion is a copy of a citation for disorderly conduct issued to her by the Brownfield Police Department on December 8, 2000. However, Plaintiff April Rolen does not point to the citation as evidence for anything other than proof that the police were aware of her birth date of April 23, 1985, to support her claim that they knew she was underage when used in the drug-sting operation. Otherwise, Plaintiff April Rolen's motion does nothing more than reassert her factual allegations contained in the Original Complaint and the Rule 7(a) Reply. She has not accompanied her motion with an affidavit or declaration under penalty of perjury that would support her factual allegations.⁶

6 Under 28 U.S.C. § 1746, unsworn declarations are permitted to substitute for an affiant's oath if the statement contained therein is made "under penalty of perjury" and verified as "true and correct." Nissho-Iwai American Corp. v. Kline, 845 F.2d 1300, 1306 (5th Cir. 1988).

Defendants rightfully argue that the unsworn allegations in Plaintiff April Rolen's motion, though signed by her, are not competent summary judgment evidence. Although "verified pleadings may in some circumstances be treated as affidavits in support of a motion for summary judgment which require the opposing party to respond under Rule 56(e), . . . summary judgment is not warranted unless the verified pleadings meet the standards for affidavits laid down by Rule 56(e)." Fowler v. Southern Tel. Telegraph Co., 343 F.2d 150, 154 (5th Cir. 1965). Because the motion filed by Plaintiff April Rolen is not verified and fails to meet the standard for affidavits, it may not be considered as competent summary judgment evidence. Consequently, Plaintiff April Rolen's Motion for Summary Judgment fails to bring forward evidence that, if believed, would prove all the essential elements of her claim and therefore fails to show that there are no genuine issues of material fact and that she is entitled to judgment as a matter of law.

B. Defendants' Motion for Summary Judgment on Defense of Qualified Immunity

Defendants City of Brownfield and Torres filed their Motion for Summary Judgment on the Issue of Qualified Immunity on August 7, 2004. Officials sued in their individual capacity for violations under § 1983 may assert a defense of qualified immunity. See Petta v. Rivera, 143 F.3d 895, 898 (5th Cir. 1998). The doctrine of qualified immunity shields a government official by serving as "an immunity from suit rather than a mere defense to liability[.]" Saucier v. Katz, 533 U.S. 194, 200, 121 S. Ct. 2151, 2156, 150 L. Ed. 2d 272 (2001). Because qualified immunity is an immunity from suit, it should be resolved at the earliest possible stage of litigation. Saucier, 533 U.S. at 201, 121 S. Ct. at 2156. Qualified immunity should protect "all but the plainly incompetent or those who knowingly violate the law." Malley v. Briggs, 475 U.S. 335, 344-45, 106 S. Ct. 1092, 89 L.Ed. 2d 271 (1986). Immunity ordinarily is a question of law to be decided by the court before trial. Hunter v. Bryant, 502 U.S. 224, 228, 112 S. Ct. 534, 537, 116 L. Ed. 2d 589 (1991).

To determine whether an official is entitled to qualified immunity for a violation under § 1983, this Court must engage in a two-part inquiry: (1) whether the Plaintiff has alleged a violation of a clearly established constitutional right; and (2) if so, whether a defendant's conduct was objectively unreasonable in light of the clearly established law at the time of the incident. Jacobs v. West Feliciana Sheriff's Dep't, 228 F.3d 388, 393 (5th Cir. 2000). As to the first part of the inquiry, the relevant question is whether, "[t]aken in the light most favorable to the party asserting the injury . . ., the facts alleged show the [defendant]'s conduct violated a constitutional right." Saucier, 533 U.S. at 201, 121 S.Ct. at 2156. "If a violation could be made out on a favorable view of the parties' submissions, the next, sequential step is to ask whether the right was clearly established. This inquiry, it is vital to note, must be undertaken in light of the specific context of the case, not as a broad general proposition." Id.

"Even if the plaintiff's complaint adequately alleges the commission of acts that violated clearly established law, the defendant is entitled to summary judgment if discovery fails to uncover evidence sufficient to create a genuine issue as to whether the defendant in fact committed those acts." Mitchell v. Forsyth, 472 U.S. 511, 526, 105 S.Ct. 2806, 2815, 86 L.Ed. 2d 411 (1985). The Fifth Circuit does "not require that an official demonstrate that he did not violate clearly established federal rights; [precedence] places that burden upon plaintiffs." Thompson v. Upshur, 245 F.3d 447, 456 (5th Cir. 2001). Therefore, this Court will separately analyze each of the Plaintiffs' claims to determine whether Plaintiffs have met the burden of proof to establish a violation of a clearly established federal right necessary to overcome qualified immunity for any individual Defendant whose actions are implicated in the alleged violation.⁷ 1. Claim for False Arrest of Plaintiff April Rolen and Seizure of Her Vehicle

7 To date, Plaintiffs have only named and served Torres as a defendant in an individual capacity, although the lawsuit lists "other employees and unknown officers," presumably of the City of Brownfield, as well. Torres has moved this Court for summary judgment on the issue of qualified immunity. While Plaintiffs' Rule 7(a) Replies have specifically named other individuals as participants in the activities they claim violated their rights, they have never sought to serve any of them. Therefore, Defendants argue that neither the unnamed individual employees and officers (who are technically defendants in the case) nor any of those individuals who have been merely identified by name in the various Rule 7(a) Replies are properly before this Court. See Murphy Bros., Inc. v. Michetti Pipe Stringing, Inc., 526 U.S. 344, 350, 119 S.Ct. 1322, 1326-27, 143 L.Ed.2d 448 (1999) (concluding court does not have personal jurisdiction over defendants not served with process); Nagle v. Lee, 807 F.2d 435, 440 (5th Cir. 1987) ("A person named as a party can subject himself to the court's jurisdiction either by voluntarily appearing in court or by being brought under the court's authority through valid service of process"). The Court agrees. Consequently, as none of the individuals named in the various Rule 7(a) Replies are defendants in this case, they are not in need of the protection qualified immunity affords. Accordingly, it would not be appropriate for this Court to determine the issue of qualified immunity for any person in his or her individual capacity except Defendant Torres.

Plaintiffs claim in their Rule 7(a) Reply⁸ that Defendant Torres violated Plaintiff April Rolen's constitutional rights to due process and equal protection

8 Plaintiffs have in fact submitted three separate Rule 7(a) Replies, a fact that has not contributed appreciably to clearing up the "hodge podge of claims and allegations" this Court noted made up Plaintiffs' original Complaint. Although all three Plaintiffs have signed each of the replies, one indicates that it is "Karla Rolen Clark's Rule 7(a) Reply", one that it is "L.D. Clark's Rule 7(a) Reply", and another that it is "Plaintiffs' Rule 7(a) Reply." When appropriate to refer to a specific reply, the Court will refer to the replies thusly; otherwise, the Court will refer to "Plaintiffs' Rule 7(a) Replies" in the aggregate where a specific one is not intended.

for all the following reasons; (1) Brownfield police officer Rafael Torres participated with the Llano Estacado Drug Task Force officer Jason Johnson by stopping and delivering messages personally to April Rolen; (2) by stopping by April Rolen's grandmother's house and delivering messages for April Rolen to meet officer Jason Johnson; (3) by fabricating a false citation, by giving false testimony or causing false testimony to be presented to a Terry Count [sic] grand jury that caused criminal charges to be filed on April Rolen; (4) by implementing a false arrest without probable cause knowing full well that the call made to the police station was false and fabricated by individuals who had it in or [sic] for April Rolen because she had participated in buying drugs in a drug sting operation; (5) Officer Torres filed a false affidavit that caused an arrest warrant to be issued for April Rolen's arrest

on or about September 27, 2003. [Pls.' Rule 7(a) Reply at 6]. Plaintiffs further claim that Officer Torres "selectively applied law and filed a false affidavit and information on a citation and report on September 26, 2003 or September 27, 2003 that caused April Rolen to have her car impounded and held for an auction to sale [sic] car." Id. ⁹

9 Although all these claims appear in the Plaintiffs' joint Rule 7(a) Reply, Plaintiff April Rolen is the only one with standing to make these particular claims, as she was an adult at the time of her arrest on September 27, 2003, her birthday being April 23, 1985. [ See Defs.' App. to Mot. Summ. J., Ex. J at 26].

In responding to an order for a Rule 7(a) reply, "a plaintiff cannot be allowed to rest on general characterizations, but must speak to the factual particulars of the alleged actions, at least when those facts are known to the plaintiff and are not peculiarly within the knowledge of defendants." Schultea v. Wood, 47 F.3d 1427, 1432 (5th Cir. 1995). Where plaintiffs who are ordered to plead with more particularity include no significant additional details of a claim, a defendant is entitled to qualified immunity. See Nieto v. San Perlita Indep. Sch. Dist., 894 F.2d 174, 176 (5th Cir. 1990). A court is not required to allow further pleading where to do so "would do nothing but prolong the inevitable, and would only subject the defendants to exactly those hardships the immunity doctrine is supposed to relieve." Jacquez v. Procunier, 801 F.2d 789, 793 (5th Cir. 1994).

As to Plaintiff April Rolen's allegations numbered one and two, regarding the delivering of messages, the Court simply notes that the facts as they are stated in the Rule 7(a) Reply in no way may be construed as alleging a violation of any federal right.¹⁰ Even if these two allegations relate to the claim in the original Complaint regarding threatening and harassing phone calls made by police officers to intimidate April Rolen into wearing a wire, Plaintiffs' Rule 7(a) Reply fails to comply with this Court's Order dated May 17, 2003, requiring them to respond to Defendants' request to adequately address this claim in more detail. The Court has provided Plaintiff with an opportunity to plead her case, yet her Reply includes no significant additional details regarding her claim. If anything, Plaintiffs' Rule 7(a) Reply is even less detailed than the original Complaint regarding these two allegations. Consequently, the Court determines that Plaintiff April Rolen has alleged her best case as to these two claims. In addition, in his declaration, Defendant Torres specifically denies that he ever did what is claimed in these two allegations [App. to Defs.' Mot. Summ. J., Ex. A, Decl. of Rafael Torres ¶ 4], and Plaintiff has provided no summary judgment evidence that puts his statement in dispute.¹¹ Therefore, Defendant Torres is entitled to summary judgment on the issue of qualified immunity as to these claims.¹²

10 The Court finds that these claims are more closely related to Plaintiffs' allegations regarding the alleged wiring of April Rolen for use in a drug string operation, but Plaintiffs have joined it instead to their claims regarding April Rolen's false arrest. Therefore, the Court will deal with it in that context, while noting that the Court's decision ultimately would not be affected regardless of where the Court chose to deal with the claims.

11 As previously noted, Plaintiffs did not file a Response to Defendants' Motion for Summary Judgment, although they did file a Motion Pursuant to Rule 12(f) of F.R.C.P. to Strike Defendants' Motion for Summary Judgement. However, Plaintiffs' Motion, though it purports to challenge the admissibility or reliability of some of Defendants' evidence, does not challenge any of Defendants' evidence related to the issue of qualified immunity for Defendant Torres as to Plaintiff April Rolen's claim of arrest without probable cause and seizure of her vehicle. Neither does it present any evidence, in the form of affidavits or otherwise, in support of Plaintiff April Rolen's conclusory allegation of false arrest. Furthermore, although pro se plaintiffs are not held to the same standards for compliance with formal or technical pleading rules applied to attorneys, they are not permitted to oppose summary judgment by relying on their unverified pleadings. See King v. Dogan, 31 F.3d 344, 346 (5th Cir. 1994).

12 Although Plaintiff April Rolen's claims numbered one and two mention Jason Johnson by name, he has neither been named nor served as a defendant in this lawsuit and is not in need of the protection provided by qualified immunity. See supra, note 7.

Similarly, as to the next two allegations (numbers three and four), this Court again determines that Plaintiffs' Rule 7(a) Reply fails to adequately address these claims in sufficient detail to overcome Defendants' claims to qualified immunity. Plaintiff April Rolen provides no detail as to specific dates, the nature of the supposedly false statements on any citations, or the nature of the false charges issued and ruled upon by any court. Once again, Plaintiff also fails to present any summary judgment evidence in support of these claims. Consequently, Defendant Torres is entitled to qualified immunity as to these claims.

Finally, as to Plaintiff April Rolen's claim number five concerning her alleged arrest without probable cause on September 27, 2003, and her further claim regarding the subsequent seizure of her vehicle, Defendants argue that Defendant Torres is entitled to qualified immunity because the evidence clearly shows that probable cause existed to arrest April Rolen on September 27, 2003. The Fourth Amendment rule on a warrantless arrest, as was effected on April Rolen on September 27, 2003, is "clearly established law." Trejo v. Perez, 693 F.2d 482, 488 n. 10 (5th Cir. 1982). A warrantless arrest is constitutional if at the moment the arrest was made the arresting officer had probable cause to make it. Beck v. Ohio, 379 U.S. 89, 91, 85 S. Ct. 223, 225, 13 L. Ed. 2d 142 (1964). Probable cause exists "when the facts and circumstances within the arresting officer's knowledge and of which he had reasonably trustworthy information are sufficient in themselves to warrant a man of reasonable caution to believe that an offense has been or is being committed." United States v. Lowery, 436 F.2d 1171, 1174 (5th Cir. 1970), cert. denied, 401 U.S. 978, 91 S.Ct. 1208, 28 L.Ed. 2d 329 (1971). In order for Plaintiff April Rolen to overcome qualified immunity, "there must not even arguably be probable cause for the search and arrest for immunity to be lost. That is, if a reasonable officer could have concluded that there was probable cause upon the facts then available to him, qualified immunity will apply." Brown v. Lyford, 243 F.3d 185, 190 (5th Cir. 2001) (internal quotations and citation omitted).

In support of the existence of probable cause for April Rolen's arrest, Defendants present the affidavit of Officer Torres describing what he personally witnessed the night he arrested April Rolen. [App. to Defs.' Mot. Summ. J., Ex. A]. More importantly, Defendants also submit a videotape taken from the camera mounted in Torres' patrol car the night of April Rolen's arrest. [App. to Defs.' Mot. Summ. J., Ex. I]. The video shows April Rolen's car failing to stop or even slow down at two stop signs while being pursued by Torres at a high rate of speed¹³ for approximately 70 seconds through city streets with his lights and siren operating. The videotape clearly portrays what any reasonable officer in Torres' position would characterize as an attempt by the driver to evade arrest. It is beyond argument that probable cause existed for Defendant Torres to arrest April Rolen. See Atwater v. City of Lago Vista, 532 U.S. 318, 354, 121 S.Ct. 1536, 1557, 149 L.Ed.2d 549 (2001) ("If an officer has probable cause to believe that an individual has committed even a very minor criminal offense in his presence, he may, without violating the Fourth Amendment, arrest the offender"). Consequently, there was no violation of April Rolen's clearly established constitutional rights and Defendant Torres is therefore entitled to qualified immunity for Plaintiff April Rolen's § 1983 claim that she was arrested without probable cause.¹⁴

13 During the pursuit, the videotape records Torres saying that April Rolen's speed approached 90 miles per hour at one point.

14 The video clearly shows April Rolen being arrested, as she was handcuffed and transported to the City's jail facility for booking on the night of September 27, 2003. Plaintiff April Rolen's Rule 7(a) Reply, however, implies that her arrest was pursuant to false and fabricated calls made to the police station and/or a false affidavit from Officer Torres that caused an arrest warrant to be issued for her arrest. As already noted, the videotape evidence clearly establishes that Officer Torres had probable cause to arrest April Rolen without a warrant because of her reckless driving and attempt to evade arrest. Although Officer Torres later that same night swore out an affidavit for her arrest, based on the failure to stop and evading arrest as well as on the subsequent charge of unlawfully carrying a weapon that was discovered while booking her into the jail [App. to Defs.' Mot. Summ. J., Ex. J at 29-36], those warrants clearly were not lacking in probable cause, as they were based on Officer Torres' personal knowledge.

Plaintiff April Rolen also complains that her due process rights were violated when her car was seized on the night of her arrest. Under the Fifth and Fourteenth Amendments, seizure of property must satisfy due process concerns. See Armstrong v. Manzo, 380 U.S. 545, 552, 85 S. Ct. 1187, 1191, 14 L.Ed.2d 62 (1965) ("A fundamental requirement of due process is the opportunity to be heard. It is an opportunity which must be granted at a meaningful time and in a meaningful manner"). The hearing does not always need to take place before the deprivation of the interest, but may be postponed under "extraordinary situations." Fuentes v. Shevin, 407 U.S. 67, 90, 92 S.Ct. 1983, 1999, 32 L.Ed. 2d 556 (1972). Thus, courts have countenanced deprivation of property interests without opportunity for a prior hearing when (1) the deprivation is directly necessary to secure an important government or general public interest, (2) there is a special need for very prompt action, and (3) the person initiating the seizure has been a government official responsible for determining, under the standards of a narrowly drawn statute, that it was necessary and justified in the particular instance. Id. at 91, 92 S.Ct. at 2000.

Defendants argue that the Texas Code of Criminal Procedure, art. 59.02, authorizing the seizure of contraband, entitled Defendant Torres to begin seizure proceedings against April Rolen's vehicle on the night of her arrest. Contraband is defined, in pertinent part, as "property of any nature, including real, personal, tangible, or intangible, that is . . . used in the commission of . . . any felony under Section . . . 38.04 [of the] Penal Code. TEX. CRIM. PROC. CODE art. 59.01(2)(A)(ii). Section 38.04 of the Texas Penal Code makes it a felony for anyone to use a vehicle to "intentionally flee from a person he knows is a peace officer attempting lawfully to arrest or detain him." TEX. PENAL CODE § 38.04(a), (b)(1).

Regardless of the appropriateness, if any, of the initial seizure of Plaintiff April Rolen's vehicle the night of her arrest, the evidence presented by Defendants and uncontroverted by Plaintiff April Rolen shows that the City Attorney exercised prosecutorial discretion to not use the law permitting seizure of contraband and ordered release of the vehicle on October 2, 2003. [App. to Defs.' Mot. Summ. J., Ex. L]. Plaintiff April Rolen has not alleged, much less presented any evidence, that she was denied an opportunity to be heard at a meaningful time and place regarding the seizure of her vehicle. In the end, Plaintiff April Rolen fails to show that she suffered any ultimate or even temporary deprivation of her property that would rise to the level of a deprivation of property without due process of law. Absent any violation of the Fourth and Fourteenth Amendments, Defendant Torres is entitled to qualified immunity.

Furthermore, because the Court has determined that qualified immunity for Defendant Torres is appropriate based on the failure to allege a claim for violation of rights or lack of evidence that Plaintiff April Rolen's rights were violated, whether by Defendant Torres or any other individual, this Court further determines sua sponte that summary dismissal with prejudice of Plaintiff April Rolen's § 1983 claims for arrest without probable cause and seizure of her vehicle without due process is also appropriate.¹⁵ See General Universal Systems, Inc. v. Lee, 379 F.3d 131, 145 (5th Cir. 2004) (granting summary dismissal not specifically requested by defendant where plaintiff on notice that summary judgment was at issue and plaintiff not deprived of opportunity to ascertain necessary facts yet presented no evidence to support its claim).

15 Dismissal with prejudice further assures that Jason Johnson is not subject to any future claims for liability on these allegations.

2. Claim for the Arrest of Plaintiff L.D. Clark Without Probable Cause

Plaintiff L.D. Clark's Rule 7(a) Reply alleges that "Brownfield Police Chief Roy Rice, police officer Mathis are responsible for his arrest without probable cause and pursuant to information given plaintiff L.D. Clark by Judge Charles Odell Sears, two city employees with names unknown and the city of Brownfield are all responsible." [Pl. L.D. Clark's Rule 7(a) Reply at 3]. Existing law at the time of the events in question clearly established that a person may not be arrested without probable cause. Beck v. Ohio, 379 U.S. 89, 91, 85 S. Ct. 223, 225, 13 L. Ed. 2d 142 (1964). The parties do not dispute this. However, a § 1983 claim must rest upon a denial of rights secured under the Constitution or federal law, and "causing charges to be filed without probable cause will not without more violate the Constitution." Castellano v. Fragozo, 352 F.3d 939, 953 (5th Cir. 2003) (en banc), petition for cert. filed, 72 U.S.L.W. 3580 (U.S. Mar. 2, 2004) (No. 03-1269).

Defendants contend that there is no evidence that Plaintiff L.D. Clark was ever arrested on the charge of violating the City ordinance concerning weed control on private property, and they provide evidence in the form of declarations under penalty of perjury stating that he was in fact never arrested. [Defs.' App. to Mot. Summ. J., Ex. B, Decl. of Roy Rice at ¶ 2; Ex. F, Decl. of Jerry Mathis at ¶¶ 2-3]. Further, Defendants provide evidence in the form of tape recordings and transcripts of a City Council meeting at which Plaintiff L.D. Clark appeared and stated that although a police officer showed up at his house with a warrant, "he did not go ahead and arrest me." [Defs.' App. to Mot. Summ. J., Ex. Q, Tape of City Council Meeting; Ex. R, Transcript of City Council Meeting at 102]. The fact that Plaintiff L.D. Clark may allege otherwise in his Complaint and his Rule 7(a) Reply is not evidence to the contrary.¹⁶ Therefore, even if charges were filed and a warrant issued without probable cause for Plaintiff L.D. Clark's arrest, there is no summary judgment evidence to support Plaintiff L.D. Clark's contention that he was in fact arrested on the allegedly invalid warrant.¹⁷

16 In addition, Plaintiffs' Motion responding to Defendants' summary judgment motion, though it purports to challenge the admissibility of some of Defendants' evidence, does not challenge any of Defendants' evidence related to the issue of qualified immunity for Plaintiff L.D. Clark's claim of arrest without probable cause. Neither does it present any evidence, in the form of affidavits or otherwise, in support of Plaintiff L.D. Clark's conclusory allegation of false arrest. See supra, note 11.

17 Indeed, Plaintiff L.D. Clark's claim that the arrest warrant was issued without probable cause, in light of the fact that there is no evidence he was arrested, is really just an attempt to reassert his claims for malicious prosecution and government misconduct. However, this Court, in its Order dated April 7, 2004, has already determined those claims may not be made under § 1983 and has dismissed them. Accordingly, those claims are no longer before this Court. Plaintiff L.D. Clark's Rule 7(a) Reply also attempts to revive his equal protection claims, which were also dismissed by this Court in that same Order, and these claims are also no longer before this Court.

Significantly, none of the facts set forth by Plaintiff L.D. Clark pertaining to his alleged arrest without probable cause involve Defendant Torres. Furthermore, he does not present any summary judgment evidence implicating Defendant Torres in any way with this incident. On that basis alone, Defendant Torres is entitled to qualified immunity. Additionally, in light of the evidence presented by Defendants and the absence of evidence to the contrary from Plaintiffs, this Court finds that there is no genuine issue of material fact regarding Plaintiff L.D. Clark's arrest. Plaintiff L.D. Clark's clearly established constitutional right not to be arrested without probable cause was not violated, whether by Defendant Torres or any other individual. The lack of evidence for any violation further entitles Defendant Torres to qualified immunity, but it also makes it appropriate for this Court to determine sua sponte that Defendants are entitled to summary dismissal of Plaintiff L.D. Clark's § 1983 claims for arrest without probable cause.¹⁸ 3. Claim That City Failed to Investigate Rape of April Rolen

18 Defendants, in an abundance of caution, also moved for summary judgment on the issue of qualified immunity for Police Chief Roy Rice, Police Officer Jerry Mathis, City Attorney Jean Shotts, City Manager Eldon Jobe, and City Council member Glen Waters. As noted earlier, these persons are not in need of the protection qualified immunity would afford, while dismissal of this claim with prejudice eliminates for them the threat of any future liability. See supra, note 7.

Plaintiffs' Rule 7(a) Reply claims that an alleged rape of April Rolen was reported to the City Council at a meeting on October 16, 2003, but that no action was taken by the City Council or Police Department. Defendants argue that the evidence, in the form of the tape recording and transcript referred to above, shows that no crime was being reported because no specifics were provided to the Council. Consequently, Defendants argue, the persons Plaintiffs implicate in this claim, i.e., City Attorney Jean Shotts, City Manager Eldon Jobe, Chief of Police Roy Rice, and City Council member Glen Waters, are entitled to qualified immunity because there was no actionable § 1983 violation. As noted above, the relevant question before this Court is whether, "[t]aken in the light most favorable to the party asserting the injury . . . the facts alleged show the [defendant]'s conduct violated a constitutional right?" Saucier, 533 U.S. at 201, 121 S. Ct. at 2156. This requires Plaintiff to first identify one or more specific constitutionally protected rights that have been infringed. See Graham v. Connor, 490 U.S. 386, 394, 109 S. Ct. 1865, 1870, 104 L. Ed. 2d 443 (1989).

Plaintiffs fail to make clear exactly what violations they are alleging, whether under the Fourth, Fifth, or Fourteenth Amendments, and this Court cannot discern any despite having indulged every favorable interpretation of Plaintiffs' facts. The fact that criminal charges were not instituted against anyone for the alleged rape of April Rolen does not constitute a violation of any of the Plaintiffs' constitutional rights. The law is clearly established that a prosecutor's "decision whether or not to prosecute, and what charge to file or bring before a grand jury, generally rests entirely in his discretion." Bordenkircher v. Hayes, 434 U.S. 357, 364, 98 S. Ct. 663, 668, 7 L. Ed. 2d 446 (1978). Furthermore, "[t]he decision to file or not file criminal charges falls within th[e] category of acts that will not give rise to section 1983 liability." Oliver v. Collins, 904 F.2d 278, 281 (5th Cir. 1990); see also Oliver v. Collins, 914 F.2d 56, 60 (5th Cir. 1990) (finding no arguable basis in law for victims of crimes to bring a § 1983 action based upon the failure to investigate or prosecute the alleged criminal wrongdoing of others). For this reason, as well as because Plaintiffs' facts do not implicate Defendant Torres at all in this incident, nor is there any evidence before this Court that implicates him, Defendant Torres is entitled to qualified immunity and this claim is further dismissed with prejudice due to lack of any evidence that any constitutional violation occurred.¹⁹ 4. Due Process Claim

19 Again, all the other persons named in Plaintiffs' Rule 7(a) Reply (Police Chief Roy Rice, City Attorney Jean Shotts, City Manager Eldon Jobe, and City Councilman Glen Waters) are not in need of qualified immunity for this claim, see supra, note 7, and dismissal with prejudice further assures these persons that they are not subject to any future claims for liability for this allegation.

Plaintiffs allege that Plaintiff April Rolen was "wired" and used in an undercover drugsting operation in violation of their constitutional rights. Plaintiffs claim that April Rolen was a minor at the time of the drug-sting operation.²⁰ Further, Plaintiffs L.D. Clark, who is April Rolen's stepfather, and Karla Clark, her mother, claim that they never gave consent for her use in such an operation. The various individuals Plaintiffs claim participated in this violation are Brownfield Police Officers David Cox, Rafael Torres, Rusty Cavett, and one other unnamed officer, in their individual capacities, and Police Chief Roy Rice in his supervisory capacity, together with Jason Johnson and one other unnamed female officer, both of whom are alleged to work for the Llano Estacado Drug Task Force.²¹ [Pls.' Rule 7(a) Reply at 4]. Plaintiffs further allege some connection to the violation on the part of Brownfield City Councilman Glenn Waters and City Attorney Jean Shotts, possibly in their official capacities. [ Id.].

20 Several times Plaintiffs allege that April Rolen was fifteen years old at the time of the incident. [Pls.' 7(a) Reply at 5, 9]. Evidence presented by Defendants in the form of declarations state that April Rolen was 17 at the time she was used in drug-sting operations. [App. to Defs.' Mot. Summ. J., Ex. C, Decl. of David Cox at ¶ 4; Ex. G, Decl. of Jason Johnson at ¶¶ 2-4]. However, the two times April Rolen was wired appear to be in September and October, 2001, when she would have been sixteen years old. [App. to Pls.' Rule 7(a) Reply, Ex. 4 and 5].

21 As previously noted, other than Rafael Torres, none of these individuals is a named defendant. Plaintiffs did sue "other employees and unknown officers" in their original Complaint, but to date, no others, including those named above, have been served.

Plaintiffs allege that the "placing [of] an electronic device on a minor of fifteen (15) years old was a violation of April Renea Rolen's civil and constitutional rights, due process rights . . . and 14th amendment rights." [Pls.' Rule 7(a) Reply at 5]. Plaintiffs do not frame their claim more specifically to indicate what particular fundamental right or liberty interest is at stake. This Court, however, in its Order dated April 7, 2004, has previously exercised its obligation to liberally construe Plaintiffs' claim and has characterized it as a colorable claim for violating their right to family integrity.²² In order to determine whether the individual Defendants are entitled to qualified immunity, this Court must determine whether it was clearly established at the time of the incident that placing an electronic device on a minor without parental permission was a violation of the right to family integrity.

22 An important element in the Court's opinion construing such a claim is that Plaintiffs' original Complaint alleged that L.D. Clark and Karla Rolen Clark had explicitly denied permission for April Rolen to be wired or used in a drug-sting operation. However, Plaintiffs do not re-allege this claim of lack of permission anywhere in any of the various Rule 7(a) Replies.

The Fourteenth Amendment clearly protects the right to family integrity. See Stanley v. Illinois, 405 U.S. 645, 651, 92 S. Ct. 1208, 1213, 31 L. Ed. 2d 551 (1972) ("The integrity of the family unit has found protection in the Due Process Clause of the Fourteenth Amendment"); see also Morris v. Dearborne, 181 F.3d 657 (5th Cir. 1999). This constitutional right was first enunciated by the Supreme Court over 80 years ago, beginning with Meyer v. Nebraska, 262 U.S. 390, 43 S. Ct. 625, 67 L. Ed. 1042 (1923) (holding that a state could not prohibit the teaching of a foreign language in private schools because the statute improperly infringed upon the liberty of parents to make educational decisions), and Pierce v. Society of Sisters, 268 U.S. 510, 45 S. Ct. 571, 69 L.Ed. 1070 (1925) (holding that a state could not effectively ban parochial schools by requiring parents to send their children to government-operated schools). The Fifth Circuit has recognized "that a parent's right to rear their children without undue governmental interference is a fundamental component of due process." Qutb v. Strauss, 11 F.3d 488, 495 (5th Cir. 1993). It has further described the right to family integrity as an "essential and basic" right of the family to be free of "the coercive interference of the awesome power of the state." Hodorowski v. Ray, 844 F.2d 1210, 1216 (5th Cir. 1988).

Courts have afforded both the procedural and substantive due process rights guaranteed under the Fourteenth Amendment to the right to family integrity. See Collins v. City of Harker Heights, Texas, 503 U.S. 115, 125, 112 S. Ct. 1061, 1068, 117 L.Ed. 2d 261 (1992). Procedural due process is implicated whenever the state has a legitimate interest in interfering with the parent-child relationship, and it is designed to permit such interference only so long as the parents are provided with "fundamentally fair procedures." Santosky v. Kramer, 455 U.S. 745, 754, 102 S. Ct. 1388, 1395, 71 L.Ed.2d 599 (1982). Parents' rights to fundamentally fair procedures are most critical whenever the state is seeking to have a child removed from their custody. Morris, 181 F.3d at 669 n. 7 (citing Santosky, 455 U.S. at 753-54, 102 S. Ct. at 1395). Because Plaintiffs never allege that April Rolen was removed from their custody, procedural due process analysis is not appropriate to the facts of this case.

However, the Fourteenth Amendment also bars certain state actions, "regardless of the fairness of the procedures used to implement them," where the power of the state is "used for purposes of oppression." Daniels v. Williams, 474 U.S. 327, 331, 106 S. Ct. 662, 665, 88 L.Ed. 2d 662 (1986) (internal quotation and citation omitted). Substantive due process, rather than procedural due process, protects an individual's right to be free "from all substantial arbitrary impositions and purposeless restraints," Poe v. Ullman, 367 U.S. 497, 543, 81 S. Ct. 1752, 1777, 6 L. Ed.2d 989 (1961) (Harlan, J., dissenting), and "was intended to prevent government from abusing [its] power, or employing it as an instrument of oppression," Collins, 503 U.S. at 126, 112 S. Ct. at 1069.

To overcome qualified immunity to a substantive due process claim, however, a mere allegation of government abuse is not generally considered sufficient to find that a right is clearly established. See Washington v. Glucksberg, 521 U.S. 702, 721-22 n. 7, 117 S. Ct. 2258, 2268, 138 L. Ed. 2d 772 (1997) (favoring a more "restrained methodology" than is provided by the Poe dissent's "arbitrary impositions" and "purposeless restraints" standards).²³ Instead, the Supreme Court's "substantive due process jurisprudence has been a process whereby the outlines of the 'liberty' specially protected by the Fourteenth Amendment . . . have at least been carefully refined by concrete examples involving fundamental rights found to be deeply rooted in our legal tradition." Id. at 722, 177 S.Ct. at 2268. Thus, the Supreme Court's "reluctan[ce] to expand the concept of substantive due process because guideposts for responsible decisionmaking in this unchartered area are scarce and open-ended," has led to its clear preference for requiring a "careful description of the asserted fundamental liberty interest" and a "tradition of carefully formulating the interest at stake in substantive-due-process cases." Id. at 720-22, 117 S.Ct. at 2267-69; see also Reno v. Flores, 507 U.S. 292, 302, 113 S. Ct. 1439, 1447, 123 L.Ed.2d 1 (1993) ("Substantive due process analysis must begin with a careful description of the asserted right").²⁴

23 The Supreme Court in a subsequent case subordinated the "restrained methodology" of the Glucksburg standard, which preferred finding precedential support in concrete historical examples in order to find a violation of substantive due process rights, elevating instead the "shocks-the-conscience" standard as the proper measure of arbitrariness for determining whether state executive action has violated substantive due process rights. See County of Sacramento v. Lewis, 523 U.S. 833, 861, 118 S. Ct. 1708, 1724, 140 L.Ed. 2d 1043 (1998) (Scalia, J. concurring) (see treatment infra at pp. 27-28). Nevertheless, the "restrained methodology" of Glucksburg remains useful for determinations of qualified immunity, where a finding that the contours of a right are clearly established would seem to require examples of the claimed liberty right at some appropriate level of specificity. Compare Lewis, 523 U.S. at 847 n. 8, 118 S. Ct. at 1717 (determining whether there was a violation of a right at all) (" Glucksburg was about the need for historical examples of recognition of the claimed liberty protection at some appropriate level of specificity"), with Wilson v. Layne, 526 U.S. 603, 615, 119 S. Ct. 1692, 1699-1700 (1999) (determining whether a right was clearly established) ("[T]he right allegedly violated must be defined at the appropriate level of specificity before a court can determine if it was clearly established").

24 Consequently, in Glucksburg the Supreme Court rejected a more general formulation of the issue as whether there is a "right to die" in favor of whether "the 'liberty' specially protected by the Due Process Clause includes a right to commit suicide which itself includes a right to assistance in doing so." Washington v. Glucksburg, 521 U.S. 702, 722-23, 117 S. Ct. 2258, 2269 (1997). Similarly, in Flores the Supreme Court rejected formulating the issue as one of "the freedom from physical restraint" in favor of its preferred formulation as whether there is a right for a "child, who has no available parent, close relative, or legal guardian, and for whom the government is responsible, to be placed in the custody of a willing-and-able private custodian rather than of a government . . . child-care institution." Flores, 507 U.S. at 302, 113 S.Ct. at 1447.

Although the right to family integrity has been recognized, "the contours of that right are not well-defined, and continue to be nebulous." Kiser v. Garrett, 67 F.3d 1166, 1173 (5th Cir. 1995). Certainly, the Supreme Court has been willing to provide definition to the contours of this right in the context of a parental interest in decisions involving the education and religious upbringing of children. See Meyer v. Nebraska, 262 U.S. 390, 43 S. Ct. 625, 67 L. Ed. 1042 (1923) (defining parents' liberty interest in child's education); Pierce v. Society of Sisters, 268 U.S. 510, 45 S. Ct. 571, 69 L.Ed. 1070 (1925) (defining parents' liberty interest in children's religious upbringing); Wisconsin v. Yoder, 406 U.S. 205, 92 S. Ct. 1526, 32 L.Ed. 2d 15 (1972) (same); Runyon v. McCrary, 427 U.S. 160, 177, 96 S. Ct. 2586, 2597, 49 L. Ed. 2d 415 (1976) (defining parental liberty interest in forming child's values and standards). The Supreme Court has shown its willingness to further define this right in the context of medical decisions. See Planned Parenthood of Central Missouri v. Danforth, 428 U.S. 52, 90, 96 S. Ct. 2831, 2851, 49 L. Ed. 2d 788 (1976) (rejecting parental right to impose absolute limitation on a minor's right to an abortion); Bellotti v. Baird, 428 U.S. 132, 96 S. Ct. 2857, 49 L. Ed. 2d 844 (1976) (refusing to strike down statute providing for parental consultation prior to a minor's abortion where parental veto is not absolute and there is opportunity for judicial override); Parham v. J.R., 442 U.S. 584, 99 S. Ct. 2493, 61 L.Ed.2d 101 (1979) (establishing parental right to decide whether to commit one's own child to a mental institution).

When considering the issue of qualified immunity, this Court obviously must consider both the Supreme Court and Fifth Circuit decisions on point, but it should also consider decisions from sister circuits to determine whether the applicable law was clearly established at the time of the constitutional violation. See McClendon v. City of Columbia, 305 F.3d 314, 329 (5th Cir. 2002). In doing so, this Court finds no case that clearly establishes that the placement of an electronic device on a minor of fifteen years old and using that minor as an informant without first getting parental consent constituted a violation of either the minor's or the parents' substantive due process rights. The right asserted by Plaintiffs in this case certainly falls within the "nebulous," rather than in any of the "well-defined," realms of the right to family integrity. Even were the Court to assume that such a right exists under the circumstances involved here, this Court finds that qualified immunity for Defendant Torres is nevertheless appropriate in this case.²⁵ This conclusion fits comfortably with the language used by the Fifth Circuit in Hodorowski v. Ray, where the court stated:

25 The other named individuals do not need the protection of qualified immunity. See supra, note 7.

It is beyond dispute that many aspects of family integrity possess constitutional stature. But reasonable government officials, knowing only that they must not infringe on family integrity, would not necessarily know just what conduct was prohibited. In particular, in the absence of any more fact-specific authority, we do not think that [the individual Defendants] in this case should have known that their conduct . . . violated the nebulous right to family integrity.

Hodorowski v. Ray, 844 F.2d 1210, 1217 (5th Cir. 1988).

This Court, however, will not simply assume that such a right exists. The Supreme Court has instructed that courts should not assume, without deciding, the preliminary issue of whether there was a constitutional violation at all. See Lewis, 523 U.S. at 841 n. 5, 118 S. Ct. at 1714. Having found no clearly established right that would prohibit the placement of an electronic device on a minor of fifteen years old and using that minor as an informant without first getting parental consent, the Court will proceed to decide that preliminary issue. Here the Court returns to its earlier analysis, that substantive due process is "intended to prevent government from abusing [its] power, or employing it as an instrument of oppression." Collins, 503 U.S. at 126, 112 S. Ct. at 1069. This "protection of the individual against arbitrary action of the government" is indeed "the touchstone of due process." Lewis, 523 U.S. at 845, 118 S. Ct. at 1716. The Supreme Court has made clear, however, that "only the most egregious official conduct can be said to be arbitrary in the constitutional sense." Id. at 846, 118 S. Ct. at 1716 (internal quotations omitted); see also Morris v. Dearborne, 181 F.3d 657, 668 (5th Cir. 1999) (requiring a determination that "a plaintiff's substantive due process right was violated by abusive, irrational or malicious abuse of government power that shocks the conscience").

The standard that the Supreme Court has established for determining whether a cognizable abuse of power has occurred is whether the conduct is "that which shocks the conscience" or "interferes with rights implicit in the concept of ordered liberty." Lewis, 523 U.S. at 847, 118 S. Ct. at 1717. That conduct, however, must meet a certain state-of-mind threshold. In Lewis, the Supreme Court made it clear that

the Constitution does not guarantee due care on the part of state officials; liability for negligently inflicted harm is categorically beneath the threshold of constitutional due process. It is, on the contrary, behavior at the other end of the culpability spectrum that would most probably support a substantive due process claim; conduct intended to injure in some way unjustifiable by any government interest is the sort of official action most likely to rise to the conscience-shocking level. Historically, this guarantee of due process has been applied to deliberate decisions of government officials to deprive a person of life, liberty, or property.

Id. at 849, 118 S. Ct. at 1718 (internal citations and quotations omitted). Thus, with few exceptions, egregious conduct must be intentional or deliberate.²⁶ See McClendon v. City of Columbia, 305 F.3d 314, 326 (5th Cir. 2002) ("[L]iability for negligently inflicted harm is categorically beneath the threshold of constitutional due process"). Thus, before conduct can be shown to be conscience-shocking, it must be shown to be intentional.

26 The Supreme Court in Lewis commented that greater than negligent but less than intentional, i.e., deliberately indifferent, conduct has been sufficient to state a due process claim in some very limited instances, such as where a person is in custody or where municipal liability for failure to train is involved. Id. at 849-50, 118 S. Ct. at 1718. However, neither of those instances is relevant to the issue being decided here.

Certainly in this case there is intentional conduct on the part of certain individuals. Defendants do not dispute that April Rolen was knowingly and intentionally fitted with a wire and used in a drug-sting operation. There is evidence that at least one or more officials of the Brownfield Police Department participated in or assisted in this operation on at least one occasion. [Pls.' Mot. to Strike Defs.' Mot. Summ. J., Ex. 7, Decl. of David Cox at ¶ 4; Ex. 8, Decl. of Roy Rice at ¶ 8; Ex. 10 at ¶¶ 2, 4, 5, 7, 8, 10].²⁷ Such operations are quite likely utilized in every jurisdiction in this country and are not, without more, an abuse of power that is conscience-shocking and violative of a constitutional right. However, there is also evidence that at least some officials of the Brownfield Police Department knew or should have known that April Rolen was a minor at the time she was utilized in this way. [Pls.' Mot. to Strike Defs.' Mot. Summ. J., Ex. 7, Decl. of David Cox at ¶ 4; Ex. 4-5]. Even though intentional use of a minor in such a situation may raise eyebrows, whether it shocks the conscience in a constitutional manner demands further analysis, particularly of the scope of the intent necessary for a substantive due process claim.

27 Defendants object to some of this evidence, specifically exhibits numbers 4, 5, and 10 because they are not certified government documents and have not been properly authenticated, although they admit the documents in question were obtained directly from Yoakum County and produced by them to Plaintiffs during discovery. However, Plaintiffs have not relied on these documents alone, and the remaining documents are sufficient to create the fact issue.

Cases from other circuits have suggested that the proper way to frame the issue is to ask whether this intentional act was further intended to interfere with the parent-child relationship enjoyed by the minor and her parents-here, April Rolen and her mother and stepfather.²⁸ See Pittsley v. Warish, 927 F.2d 3, 8 (1st Cir. 1991) ("[I]n order to establish a violation of a right to familial associational privacy, the state action must be directly aimed at the parent-child relationship. . . . State action that affects the parental relationship only incidentally . . . is not sufficient to establish a violation of a identified liberty interest. . . . [O]nly the person toward whom the state action was directed, and not those incidentally affected, may maintain a § 1983 claim."); Griffin v. Strong, 983 F.2d 1544, 1548 (10th Cir. 1993) ("[T]o rise to the level of a constitutional claim, the defendant must direct his or her . . . conduct at the intimate relationship with knowledge that the . . . conduct will adversely affect that relationship"); Grendell v. Gillway, 974 F. Supp. 46, 53 (D. Me. 1997) (holding that a school counselor did not violate an eleven-year-old girl's substantive due process rights where the counselor had permitted her to be interrogated by police regarding her parents' drug use without seeking the consent of the parents, because "the alleged conduct here is not directly aimed at the parent-child relationship").

28 Assuming that the stepfather has standing to assert a violation of family integrity, a claim Defendants dispute in their Motion to Dismiss the Claims of Plaintiff L.D. "Chick" Clark (Which Are Unrelated to His Claims Involving High Weeds/Code Enforcement) for Lack of Jurisdiction; the Court, however, does not find it necessary to resolve this issue in order to decide this case.

These cases suggest a method for approaching the nature and scope of the intent involved that is consistent with the language of the later Supreme Court decision in Lewis. There the Court was faced with a due process claim involving the death of an individual during a high-speed police chase, where the estate of the plaintiff alleged deliberately indifferent conduct. The Court, in holding that this level of conduct was insufficient, stated:

Just as a purpose to cause harm is needed for Eighth Amendment liability in a [prison] riot case, so it ought to be needed for due process liability in a pursuit case. Accordingly, we hold that high-speed chases with no intent to harm suspects physically or to worsen their legal plight do not give rise to liability under the Fourteenth Amendment, redressible by an action under § 1983. Lewis, 523 U.S. at 854, 118 S.Ct. at 1720. Under this analysis, what is required is not just an intentional act, but an intentional act that is directed at violating the particular right asserted. Id. at 849, 118 S.Ct. at 1718 ("[T]his guarantee of due process has been applied to deliberate decisions of government officials to deprive a person of life, liberty, or property") (second emphasis added).

In this regard, the Court finds instructive a case from the Eleventh Circuit involving a minor female and the minor male who had impregnated her who were prevented by school officials from consulting with their parents regarding an abortion decision. There the court determined that "the defendants wrongfully coerced the minors to refrain from consulting with their parents prior to determining whether to proceed with the abortion and that this unconstitutionally interfered with the right of privacy existing between the plaintiffs and their children." Arnold v. Bd. of Educ. of Escambia C'nty, Ala., 880 F.2d 305, 312-14 (11th Cir. 1989), overruled on other grounds, Swann v. Southern Health Partners, Inc., 2004 WL 2364793, *5 (11th Cir. Oct. 21, 2004).

Another instructive case involved a minor who committed suicide after having been used by police officers as a drug informant without his parent's consent. In determining whether the estate of the decedent had asserted a violation of the minor's rights, the district court judge stated that he was "not prepared to hold that the use of a juvenile as an informant, even without parental consent, is comparable to the total, sustained deprivation of custody" which would have violated the minor's "right to the benefit of his family bond." Williamson v. City of Virginia Beach, Va., 786 F. Supp. 1238, 1257 (E.D. Va. 1992). Regarding the mother's claim that her right to the care, custody, and guidance of her child had been violated by the officers' actions, the court stated that it was not "confronted with a situation where a direct action of the state was performed which was intended to, and did dissolve the parental rights of the . . . parent." Finding no such intentional conduct in the facts of the case, the court held that at most the plaintiff could argue that "the defendant officers were negligent" but that there was no evidence of an intent to "completely usurp the role of the parent." Id. at 1258. The court advised that although "it is wise to obtain parental consent prior to utilizing [a] minor in the prevention of crime . . . raising the advisability of parental consent to a constitutional mandate would unduly restrict the officer's ability to act on that information in the manner he deems necessary." Id. at 1256.

In the case sub judice, there is neither a claim nor any evidence that any official prevented April Rolen from consulting with her parents or coerced or encouraged her not to consult with her parents before being utilized in the drug-sting operation. Even though Plaintiffs L.D. Clark and Karla Rolen Clark claim in their original Complaint to have informed officials that they did not approve of April Rolen being used in such an operation, no such allegation is repeated in any of the Rule 7(a) Replies. On the other hand, Defendants present evidence in support of their contention that they were never told by April Rolen's mother or stepfather not to use her in the operation. [App. to Pls.' Mot. Summ. J., Ex. B, Decl. of Roy Rice at ¶ 8; Ex. C, Decl. of David Cox at ¶ 3]. Plaintiffs have presented no summary judgment evidence in the form of affidavits or otherwise as proof that they refused permission for April Rolen to be used in the operation. Furthermore, the use of April Rolen in the drug-sting operation did not amount to a "sustained deprivation of custody" which would have violated any Plaintiff's "right to the benefit of the family bond." Nor was any direct action of the state performed that was intended to or that actually did dissolve the family bond.

Accordingly, the evidence in this case, when viewed in the light most favorable to Plaintiffs, simply does not show that anyone intentionally or deliberately attempted to interfere with the Plaintiffs' family integrity rights. Consequently, there was nothing that could be considered an egregious abuse of power that shocks the conscience and thus no violation of Plaintiffs; substantive due process rights occurred.²⁹ Not only does this further supply an additional justification for granting qualified immunity to Defendant Torres, but it further justifies dismissal with prejudice of Plaintiffs' due process claim.³⁰

29 The Ninth Circuit suggests a different way to frame the issue of intent by simply asking whether in fact a state official's intentional act deprived the Plaintiffs of their family integrity. See Smith v. City of Fontana, 818 F.2d 1411, 1420 (9th Cir. 1987), overruled on other grounds, Hodgers-Durgin v. de la Vina, 199 F.3d 1037 (9th Cir. 1999) ("As long as the state official's action which deprived the plaintiffs of their liberty was more than merely negligent, the plaintiffs can state a section 1983 claim without further alleging that the official was trying to break up their family"). Under this reasoning, an intentional act that incidentally rather than deliberately violated a right could result in liability. Even were the Court to adopt this understanding of the scope of the necessary intent, there is still no evidence to suggest that the family bond was ever sundered or diminished even incidentally.

30 Accordingly, it further assures that David Cox, Jason Johnson, in their individual capacities, and Police Chief Roy Rice in his supervisory capacity, are not subject to any future claims for liability for this allegation. Plaintiffs also mention Brownfield Police Officer Rusty Cavett, claiming that he "issued April Rolen a citation which was only issued for the purpose of making April Rolen look like a bad person at the Brownfield High School so the other students would trust April Rolen and confide in her about their drug habits so April Rolen could gather information from other students for the Brownfield Police Department and the Llano Estacado Drug Task Force on who was involved in using drugs and who [sic] each student was buying drugs from." [Pls.' Rule 7(a) Reply at 7]. This claim is also dismissed with prejudice for its total failure to describe anything remotely close to being a conscience-shocking action by a state official.

In reaching this conclusion, the Court in no way means to indicate that it finds laudable or prudent the various individuals' failure to actively seek parental consent for their actions. Indeed, the officials in charge of the operation may have been negligent with regard to the Plaintiffs' rights to family integrity. However, "the Constitution does not guarantee due care on the part of state officials; liability for negligently inflicted harm is categorically beneath the threshold of constitutional due process." Lewis, 523 U.S. at 849, 118 S. Ct. at 1718. This Court's decision only means that failure to do so, without any attendant coercion or restriction directed at preventing parental involvement, does not in and of itself constitute a substantive due process violation.³¹ By making this careful distinction, this Court is of the opinion that it is thereby giving due deference to the Supreme Court's admonition to always be aware "that it is a constitution we are expounding." Id. at 846, 118 S. Ct. at 1716.

31 The Court further notes that under a different set of facts it might be appropriate to adopt the lower deliberate-indifference standard. In a case involving a younger and more immature minor where there is a "failure even to care" about getting parental permission, the Court might find that such "indifference is truly shocking." Id. at 853, 118 S. Ct. at 1720. As the Supreme Court noted in Lewis,

[r]ules of due process are not, however, subject to mechanical application in unfamiliar territory. Deliberate indifference that shocks in one environment may not be so patently egregious in another, and our concern with preserving the constitutional proportions of substantive due process demands an exact analysis of circumstances before any abuse of power is condemned as conscience shocking.

Id. at 850, 118. S.Ct. 1718-19.

C. Conspiracy Claims

Although not addressed by Defendants' Motion for Summary Judgment on the Issue of Qualified Immunity, Plaintiff L.D. Clark alleges that

Brownfield Police Chief Roy Rice, officer Mathis, the city of Brownfield and two city employees, names unknown, got together and decided to make an example out of L.D. Clark and entered into a conspiracy to build a criminal case against L.D. Clark because Clark was becoming a thorn in the side of city government and was bad mouthing the police department and Brownfield city government. L.D. Clark assets the defendants named herein decided to single him out and bring pressure to bare [sic]. Therefore, a bogus arrest warrant was issued for L.D. Clark's arrest without probable cause.

[Pl. L.D. Clark's Rule 7(a) Reply at 3]. Also unaddressed is Plaintiffs' allegation that "Chief Roy Rice conspired with officers, Rafael Torres, David Cox, Rusty Cavett in a conspiracy to impound April Rolen's car trying to intimidate her into cooperating to continue to buy drugs and inform the Brownfield City Police Department about who was using drugs and where they were buying their drugs." [Pls.' Rule 7(a) Reply at 9].

A § 1983 conspiracy claim may arise when persons conspire to deprive a person of a constitutional right under color of state law. See Dennis v. Sparks, 449 U.S. 24, 29, 101 S. Ct. 183, 187, 66 L.Ed. 2d 185 (1980). The conspiracy provides the requisite color of state law under § 1983. However, § 1983 does not itself create a cause of action for conspiracy to deprive one of a constitutional right, because "it remains necessary to prove an actual deprivation of a constitutional right; a conspiracy to deprive [alone] is insufficient." Villanueva v. McInnis, 723 F.2d 414, 418 (5th Cir. 1984); see also Kaplan v. Clear Lake City Water Auth., 794 F.2d 1059, 1065 (5th Cir. 1986).

Here, Defendants successfully moved for summary judgment on the issue of qualified immunity for the false-arrest claim of Plaintiff L.D. Clark and the unconstitutional-seizure-of-property claim of Plaintiff April Rolen. Plaintiffs were on notice, therefore, to show that their constitutional rights had been violated in order to overcome Defendants' qualified immunity defense. The Court has already determined that Plaintiff April Rolen was not unconstitutionally deprived of her property [ see section A 1 above] and that Plaintiff L.D. Clark was never arrested in the first place [ see section A.2 above]. Although Defendants did not move for summary judgment on the issue of qualified immunity for the conspiracy claims, individual liability for these conspiracy claims is precluded nonetheless because the evidence shows that there was no underlying violation of Plaintiff L.D. Clark or April Rolen's constitutional rights. Because there is no genuine issue of material fact as to the circumstances under which the Court must evaluate these claims, it is therefore appropriate for this Court to sua sponte order a summary dismissal of these § 1983 conspiracy claims. See General Universal Systems, Inc. v. Lee, 379 F.3d 131, 145 (5th Cir. 2004) (granting summary dismissal not specifically requested by defendant where plaintiff on notice that summary judgment was at issue and plaintiff not deprived of opportunity to ascertain necessary facts yet presented no evidence to support its claim).

D. Motion to File an Amended Complaint

Plaintiffs request leave to file their first Amended Complaint in which they seek to assert claims against additional individuals for violating Plaintiff April Rolen's constitutional rights by virtue of their involvement in the drug-sting operation. Plaintiffs name the following additional individuals: Brownfield City employees David Cox, Shawnie Martin, Migel Rodriquez, Michael Bean, and Roy L. Rice, as well as Jason Johnson and Lisa Switzer, who are alleged to be employees either of the City of Brownfield or the Llano Estacado Drug Task Force. They also name the Llano Estacado Drug Task Force ("LEDTF"). In light of the fact that this Court has concluded that dismissal with prejudice is appropriate on all of Plaintiffs' claims, including those that Plaintiffs might have against the "other employees and unknown officers" of the City of Brownfield, the Court wishes to explain its reasons for denying Plaintiffs an opportunity to amend their Complaint to name any additional defendants.

Rule 15(a) states that "leave [to amend a complaint] shall be given when justice so requires." FED. R. CIV. P. 15(a); Jacobsen v. Osborne, 133 F.3d 315, 318 (5th Cir. 1998). A court should not deny a motion to amend "unless there is a substantial reason to do so." Id. Factors that a court may consider are "whether there has been undue delay, bad faith or dilatory motive on the part of the movant, repeated failure to cure deficiencies by amendments previously allowed, undue prejudice to the opposing party, and futility of amendment." Id. (internal quotations omitted). The Court notes that "John Doe" suits are permissible only against real defendants who are unidentified at the time a complaint is filed but who are likely to be able to be identified after further discovery. See Roper v. Grayson, 81 F.3d 124, 126 (10th Cir. 1996); Gillespie v. Civiletti, 629 F.2d 637, 642 (9th Cir. 1980); Schiff v. Kennedy, 691 F.2d 196, 197 (4th Cir. 1982). Ordinarily, "the plaintiff should be given the opportunity through discovery to identify the unknown defendants, unless it is clear that discovery would not uncover the identities, or that the complaint would be dismissed on other grounds." Gillespie v. Civiletti, 629 F.2d 637, 642 (9th Cir. 1980); see also Colle v. Brazos County, Tex., 981 F.2d 237, 243 (5th Cir. 1993) (citing Gillespie); Gordon v. Leeke, 574 F.2d 1147, 1152 (4th Cir. 1978). "[I]f it does not appear that the true identity of an unnamed party can be discovered through discovery or through intervention by the court, the court could dismiss the action without prejudice." Schiff, 691 F.2d at 198 (footnote omitted); see also Munz v. Parr, 758 F.2d 1254, 1257 (8th Cir. 1985).

Plaintiffs have not suffered from a lack of opportunity to ascertain the identity of certain unidentified parties through discovery. Indeed, David Cox, Roy Rice, Jason Johnson, and the LEDTF have each been mentioned by name and the actions of each have been recounted in Plaintiffs' Rule 7(a) Replies. Plaintiffs required no discovery to ascertain the identities of these individuals or the LEDTF and serve them. Further, the Court's Scheduling Order set April 15, 2004, as the deadline for joinder of additional parties or for amending pleadings. The court-ordered deadline for filing summary judgment motions on the issue of qualified immunity was August 8, 2004. Plaintiffs' motion for leave to amend was filed on October 5, 2004. "Undue delay" is the only way to adequately describe Plaintiffs' failure to name and serve these potential parties to the suit, and they will not be heard to complain that they should be allowed to substitute named defendants for unidentified defendants at this late date. Consequently, this Court will not allow Plaintiffs now to amend their Complaint to add these defendants whose identities were previously known.³²

32 Indeed, Plaintiffs' Rule 7(a) Reply states that Police Chief Roy Rice is one of the unknown officers and is liable in his supervisory capacity. [Plaintiffs' Rule 7(a) Reply at 3]. Yet, he was never served other than in his official capacity as Chief of the Brownfield Police Department.

In addition, Plaintiffs' claims against those other individuals whose identities presumably were not known to Plaintiffs earlier, but whom Plaintiffs wish to make parties to the action at this late date, i.e., Shawnie Martin, Migel Rodriquez, Michael Bean, and Lisa Switzer, would be barred by limitations. Plaintiffs failed to name these individuals as defendants within 120 days of the filing of their Complaint on December 3, 2003, as provided for by Rule 4(m). FED. R. CIV. P. 4(m). Rule 15(c) allows an amended complaint that changes the name of a defendant who has not been served within the 120-day period, to relate back to the date of the original complaint only if there is an error in identifying the correct defendant, but does not allow such "relation back" where, as here, there is a failure to identify by name those defendants who previously have been referred to as unknown or unidentified defendants. FED. R. CIV. P. 15(c)(3); Jacobsen, 133 F.3d at 320-21. All the individuals identified above are implicated in the wiring of April Rolen for the drug-sting operation that took place in September and October 2001. Plaintiffs' motion for leave to amend was filed more than two years after the incident and would therefore be futile, because any claims against these individuals would be prescribed.³³ See Moore v. McDonald, 30 F.3d 616, 620 (5th Cir. 1994) (looking to forum state's personal injury limitations period to determine limitations for § 1983 causes of action); TEX. CIV. PRAC. REM. CODE ANN. § 16.003(a) (establishes two years as Texas' general personal injury limitations period).

33 Certainly, Plaintiffs L.D. Clark and Karla Rolen Clark's claims for substantive due process violation are barred by limitations. However, Plaintiff April Rolen's claims might survive limitations, since her claims would not have accrued until her eighteenth birthday, on April 23, 2003. See TEX. CIV. PRAC. REM. CODE § 16.001(b); Doe v. Linam, 225 F. Supp. 2d 731, 734 (S.D. Tex. 2002).

Regardless of the issue of undue delay or limitations, however, because this Court has already determined that Plaintiffs have failed to establish any violation of a constitutional right for any of their claims whatsoever, their attempt to name additional defendants at this point would be an exercise in futility. Plaintiffs' insurmountable defect is their set of facts, not the identity of any defendants. Absent facts and corresponding summary judgment evidence that adduces a violation of a constitutional right, qualified immunity would be appropriate for any additional individual named as a defendant regardless of the reason for the failure to name that individual earlier. Likewise, absent any constitutional violation by any individual, there can be no municipal liability for the LEDTF. This Court has found it appropriate to dismiss all Plaintiffs' claims on the merits, and because no amended complaint that merely attempts to name additional defendants changes those basic underlying facts, this Court is of the opinion that Plaintiffs should not be permitted to amend their Complaint now; and consequently, summary dismissal of all claims with prejudice is appropriate.

E. Municipal Liability Claims Against the City of Brownfield

In order to succeed on a claim for municipal liability against the City of Brownfield, a plaintiff must be able to show that one of the City's employees violated his or her civil rights as a result of a City policy or custom. See Monell v. New York City Dep't of Social Servs., 436 U.S. 658, 690-91, 98 S. Ct. 2018, 2035-36, 56 L. Ed. 2d 611 (1978). Thus, the City cannot be liable unless one of its employees has committed a constitutional violation under § 1983. See City of Los Angeles v. Heller, 475 U.S. 796, 799, 106 S. Ct. 1571, 1573, 89 L. Ed. 2d 806 (1986) (per curiam) ("If a person has suffered no constitutional injury at the hands of the individual police officer, the fact that the departmental regulations might have authorized [unconstitutional action] is quite beside the point.") (emphasis in original); Brown v. Lyford, 243 F.3d 185, 191 n. 18 (5th Cir. 2001) ("[I]f no claim is stated against officials — if plaintiff does not show any violation of his constitutional rights — then there exists no liability to pass through to the county").

A finding of qualified immunity does not necessarily preclude municipal liability. See Brown, 243 F.3d at 191 n. 18. This is so because a finding of qualified immunity often assumes, without actually deciding, the preliminary issue of whether a constitutional violation occurred. See Lewis, 523 U.S. at 842 n. 5, 118 S. Ct. at 1714. But where, as in all of the claims in this case, there is a finding that no constitutional violation occurred, municipal liability is precluded. Consequently, although Defendants have moved for summary judgment solely on the issue of qualified immunity, the Court determines that it is also appropriate to sua sponte dismiss Plaintiffs' claims for municipal liability against the City.

IV. CONCLUSION

For the reasons stated above, it is hereby ORDERED that

1. Plaintiffs' Motion for Summary Judgment is DENIED.

2. Defendants' Motion for Summary Judgment on the Issue of Qualified Immunity is GRANTED.

3. Plaintiffs' Motion to File an Amended Complaint is DENIED.

4. All other pending motions are DENIED as moot.

Furthermore, because Plaintiffs have failed to present evidence that, if true, would show that there was a violation of their rights under any of the claims they have advanced, it is ORDERED that all Plaintiffs' claims should be, and are hereby, DISMISSED with prejudice.

SO ORDERED.