Opinion
Civil Action No. 3:02-CV-1014-L.
May 17, 2005
ORDER
Before the court are Defendants Thomas Steelman, S.B. Spicer and City of Grand Prairie's Motion for Summary Judgment, filed May 3, 2004; and Defendant Kinecta Federal Credit Union's Motion for Summary Judgment, filed August 1, 2003. After careful consideration of the motions, responses, replies, record, appendices, and applicable law, the court grants Defendants Thomas Steelman, S.B. Spicer and City of Grand Prairie's Motion for Summary Judgment; vacates its July 27, 2004 Order; and reinstates its March 1, 2004 Order granting Defendant Kinecta Federal Credit Union's Motion for Summary Judgment.
I. Procedural and Factual Background
Jack Borninski ("Plaintiff" or "Borninski") filed this action on May 13, 2002 against Defendants Hughes/Kinecta Federal Credit Union ("Kinecta"); City of Grand Prairie ("Grand Prairie" or "city"), Grand Prairie Police Officer S.B. Spicer — No. 267 ("Spicer"), and Grand Prairie Police Officer Steelman — No. 266 ("Steelman") (collectively, "Grand Prairie Defendants"); L-3 Communications ("L-3" or "company"); James Springer ("Springer"); and Boyd Williamson ("Williamson") (collectively, "Defendants"). He amended his complaint on December 9, 2002 and filed eleven claims against various Defendants. Plaintiff contends that Grand Prairie Defendants' search of his briefcase, pat-down of his person, and refusal to file an assault report on his behalf against L-3 Defendants violated his rights to due process and equal protection under the Fourteenth Amendment to the United States Constitution and brings claims pursuant to 42 U.S.C. § 1983 against these Defendants. Further, Plaintiff contends that Grand Prairie Defendants conspired to deprive him of certain federal constitutional rights in violation of 42 U.S.C. § 1985.
On July 27, 2004 (Docket #286), the court granted Plaintiff's Motion to Vacate the Court's 3-1-04 Order (Docket #182) and vacated its March 1, 2004 Order (Docket #180) granting summary judgment in favor of Defendant Kinecta in order to allow Plaintiff additional time to respond to Kinecta's motion for summary judgment. Plaintiff filed his response on August 26, 2004. Upon review of Plaintiff's response and Defendant's reply, and further review of its March 1, 2004 Order granting summary judgment in favor of Kinecta, the court (1) determines that Plaintiff fails to raise a genuine issue of material fact with respect to his claims against Kinecta; (2) determines that the March 1, 2004 Order was correct; (3) vacates its July 27, 2004 Order (Docket # 286); and (4) reinstates its March 1, 2004 Order (Docket #180).
Claims against L-3 Defendants are addressed by the court in a separate order and filed contemporaneously with this order. The order also sets forth the nature of each claim filed against all Defendants. See Court's Order, filed May 12, 2005 at 2 nn. 2, 3 4.
With respect to Borninski's claim under 42 U.S.C. § 1983 that Grand Prairie Defendants violated his rights to due process and equal protection, Grand Prairie Defendants contend in their motion that (1) Plaintiff's due process claim fails, as he failed to plead or prove a constitutional violation; (2) Plaintiff's equal protection claim fails as well, as he failed to plead a constitutional violation and the police officers' conduct was objectively legally reasonable; and (3) they are immune under qualified immunity because Plaintiff cannot prove that any deprivation of his constitutional rights was caused by a practice or custom of Grand Prairie.
Regarding Borninski's claim under 42 U.S.C. § 1985, conspiracy to violate his constitutional rights, Grand Prairie Defendants contend that they are entitled to summary judgment, as Plaintiff failed to (1) allege that he is a member of a protected class and (2) show that L-3 Defendants and the city "formed a conspiracy based upon class based animus or took any act pursuant to such a conspiracy." Br. in Supp. of Defs. Thomas Steelman, S.B. Spicer and the City of Grand Prairie's Mot. for Summ. J. at 12 (citing Findings, Conclusions and Recommendation of the United States Magistrate Judge at 6-7, filed November 18, 2002) (internal quotations and citations omitted). The court now sets forth the undisputed facts on which it relies to resolve the motion. In setting forth the facts, the court applies the summary judgment standard as set forth in section II, infra.
In Plaintiff's response, he states, "Plaintiff disputes the following factual grounds listed in this section of the [D]efendants' motion. Plaintiff disputes them because they: do not represent the true facts, or they distort the time sequence of events. The reasons [P]laintiff disputes them are stated in [P]laintiff's brief. Disputed factual grounds: 4,5,6,9,10,12,14." Pl.'s Resp. to: Defendants Thomas Steelman, S.B. Spicer, and the City of Grant Prairie Mot. for Summ. J. at 1 (internal quotations omitted). The court notes that the factual contentions in Grand Prairie Defendants' motion (and brief) are not numbered in a fashion that would bring meaning to Plaintiff's references: 4, 5, 6, 9, 10, 12, 14. The court, therefore, cannot determine exactly which facts Plaintiff disputes, as he does not explicitly raise genuine issues of material fact in his response or brief and makes only conclusory and meaningless statements as demonstrated above. See also id. at 3 ("[N]umerous controverted material facts exist."). To the extent that the court can identify disputed facts, those factual differences are evaluated for materiality and discussed in this opinion, infra.
Raytheon, L-3's predecessor, hired Borninski on October 25, 1999, as a software engineer. L-3 contracts with the federal government and branches of the United States military to design, build, and maintain flight simulators for military aircraft. To build the simulators, L-3 receives classified and protected information depicting certain aircrafts' capabilities, weapons, and limitations from the federal government, branches of the military, and the Department of Defense ("DOD"). As a condition of contracting with the government, L-3 must comport with the Department of Defense National Industrial Security Program Operating Manual ("NISPOM"). NISPOM sets forth the manner in which L-3 must control, hold, disclose, or destroy information obtained in the development of flight simulators.
L-3 later purchased Raytheon's simulator design facility.
Pursuant to NISPOM and L-3's contract with the DOD, all employees who work on the F-16 UTD project require a Secret or an Interim Secret security clearance ("security clearance"). Security clearances are regulated, issued, and rescinded by the DOD and Defense Security Services ("DSS"). To obtain security clearance, employees must undergo criminal, education, and employer background checks. Furthermore, they are required to submit a Standard Form 86 ("SF-86") to the United States Office of Personnel Management and the DSS. The SF-86 requires each security clearance applicant to identify his or her contacts and relationships with all foreign nationals or citizens. Borninski, having filed a SF-86, received Interim Secret security clearance.
The DOD contract states: "Notification of government security activity is required." Defs.' App. at 216. Further, the contract states "[t]he National Industrial Security Program Operating Manual (NISPOM) January 1995 applies to this contract." Id. at 217.
On May 25, 2000, Scott Emry ("Emry"), one of Borninski's supervisors, drove Borninski from L-3's engineering facility in Grand Prairie to the company's administrative offices in Arlington. A L-3 Human Resources Representative and L-3's Facility Security Officer, Boyd Williamson ("Williamson"), informed Borninski that his Interim Secret security clearance was being suspended while the company investigated his unreported contact with foreign nationals; that his employment was being suspended while the company investigated his unreported contact with foreign nationals; and that he would continue to receive pay while his employment was suspended. Williamson further explained that Borninski had to leave the premises that day, but would be allowed to take his personal belongings with him after they were inspected for company documents and protected information. After Borninski collected his belongings and as he was leaving L-3's facilities, a dispute arose between him and several L-3 employees concerning the contents of his briefcase. L-3 states that its employees were concerned that Borninski was leaving with proprietary company documents; Borninski, on the other hand, states that he was wrongfully assaulted by L-3 employees as he tried to leave L-3's facilities with only his personal belongings and company-related materials that he had prepared himself. The parties called 911, and Grand Prairie Officers Spicer and Steelman responded to investigate the parties' dispute.
Borninski called 911 on his cell phone, and at approximately the same time L-3's security personnel also placed a call to 911.
Once Officers Spicer and Steelman arrived at the scene, L-3 explained to them that Borninski's employment had been suspended and his belongings needed to be inspected for company property prior to his leaving the facilities; Borninski reported to the officers that he had been assaulted by L-3 employees while trying to leave its facilities. During their investigation, Officers Spicer and Steelman searched and removed certain items from Borninski's belongings and Spicer patted Borninski down to search his person for weapons. Spicer contends that he found it necessary to search Borninski because he was acting nervous and repeatedly placing his hands in his pockets. Borninski contends that he "may have put his hand or hands in his pocket(s) once or twice while he tried to observe the search, and nobody told him not to put his hands in his pockets before Steelman responded to [P]laintiff's question as to why he body searched [Borninski]. . . ." Pl.'s Resp. to: Defs. Thomas Steelman, S.B. Spicer, and the City of Grand Prairie Mot. for Summ. J. at 8. Borninski then asked Spicer to conduct a pat-down on one of L-3's employees, Scott Emry ("Emry"), and Officer Spicer declined to do so. In order to determine whether Borninski had been assaulted, Borninski and Steelman conducted a reenactment of the "assault" based on Borninski's recollection of the events. Based on the reenactment and their discussions with all parties, the officers determined that Borninski had not been assaulted and concluded that it was not necessary to file an assault complaint against any L-3 employees. After May 25, 2000, Plaintiff attempted repeatedly to file an assault complaint with Grand Prairie Police Department against Williamson, Springer, and L-3. These attempts resulted in an investigative supplement report, filed on June 1, 2000 by Detective Oseguera, which states, "[i]t is merely the complainant's word that he was assaulted versus the tape and the written statements that he was not. Based on the tape and statements, I recommend this case be cleared unfounded." Pl.'s App. in Supp. of his Br. in Supp. of his Resp. to: Defs.' Thomas Steelman, S.B. Spicer, and the City of Grand Prairie's Mot. for Summ. J. at 5 (emphasis added).
The police offense/incident report, dated May 25, 2000, states that "Mr. Borninski was then wanting to file an assault report stating he was assaulted." Pl.'s App. in Supp. of his Br. in Supp. of his Resp. to: Defs. Thomas Steelman, S.B. Spicer, and the City of Grand Prairie Mot. for Summ. J. at 1. Mr. Borninski, in his response, states that the report was "falsified," because the report seems to indicate that "[P]laintiff did not make it known to Steelman and [Spicer] that [P]laintiff had been assaulted by Williamson and Springer until after [P]laintiff was asked to leave [L-3]." Id. at 4. Such statements by Plaintiff are of no moment and do not present material fact questions with respect to Plaintiff's claims against Grand Prairie Defendants. The court, however, as it must, accepts Borninski's version of the facts — that he had complained of the assault from the moment the officers had arrived at L-3's facilities.
II. Summary Judgment Standard
Summary judgment shall be rendered when the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 323-25 (1986); Ragas v. Tennessee Gas Pipeline Co., 136 F.3d 455, 458 (5th Cir. 1998). A dispute regarding a material fact is "genuine" if the evidence is such that a reasonable jury could return a verdict in favor of the nonmoving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). When ruling on a motion for summary judgment, the court is required to view all inferences drawn from the factual record in the light most favorable to the nonmoving party. Matsushita, 475 U.S. at 587 (1986); Ragas, 136 F.3d at 458. Further, a court "may not make credibility determinations or weigh the evidence" in ruling on motion for summary judgment. Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 150 (2000); Anderson, 477 U.S. at 254-55.
Once the moving party has made an initial showing that there is no evidence to support the nonmoving party's case, the party opposing the motion must come forward with competent summary judgment evidence of the existence of a genuine fact issue. Matsushita, 475 U.S. at 586. Mere conclusory allegations are not competent summary judgment evidence, and thus are insufficient to defeat a motion for summary judgment. Eason v. Thaler, 73 F.3d 1322, 1325 (5th Cir. 1996). Unsubstantiated assertions, improbable inferences, and unsupported speculation are not competent summary judgment evidence. See Forsyth v. Barr, 19 F.3d 1527, 1533 (5th Cir.), cert. denied, 513 U.S. 871 (1994). The party opposing summary judgment is required to identify specific evidence in the record and to articulate the precise manner in which that evidence supports his claim. Ragas, 136 F.3d at 458. Rule 56 does not impose a duty on the court to "sift through the record in search of evidence" to support the nonmovant's opposition to the motion for summary judgment. Id.; see also Skotak v. Tenneco Resins, Inc., 953 F.2d 909, 915-16 n. 7 (5th Cir.), cert. denied, 506 U.S. 832 (1992). "Only disputes over facts that might affect the outcome of the suit under the governing laws will properly preclude the entry of summary judgment." Anderson, 477 U.S. at 248. Disputed fact issues which are "irrelevant and unnecessary" will not be considered by a court in ruling on a summary judgment motion. Id. If the nonmoving party fails to make a showing sufficient to establish the existence of an element essential to its case and on which it will bear the burden of proof at trial, summary judgment must be granted. Celotex, 477 U.S. at 322-23. The court turns to address the parties' contentions with respect to Grand Prairie Defendants' motion for summary judgment.
III. Analysis
A. Due Process Claims
1. Procedural Due Process
Plaintiff purports to allege due process violations under the Fourteenth Amendment to the United States Constitution. In his complaint, Plaintiff loosely references "due process liberty interest" and "due process property interest" and then brings them under an umbrella of procedural due process violations. The court will discuss each of his purported procedural due process claims in turn.
a. Due Process Liberty Interest
Borninski contends that, as Officers Steelman and Spicer "knowingly and willfully refuse[d] to take possession of clear and obvious evidence of a crime. . . . proceed[ed] with their `investigation,' generate[d] a `no assault' conclusion, refuse[d] to take [his] assault complaint," refused to hold their own accountable, and refused to interview witnesses, they deprived him of his procedural due process liberty interest. Pl.'s Br. in Supp. of his Resp. to: Defs. Thomas Steelman, S.B. Spicer and the City of Grand Prairie's Mot. for Summ. J. at 6-7. Plaintiff alleges "he is not able to enjoy [the] liberty to which he is entitled when the police use their powers to manipulate investigations, conceal and alter evidence, refuse to interview witnesses, and refuse to hold their own accountable." Id. at 7. Defendants, on the other hand, contend that Plaintiff did not properly state a violation of his due process rights. See Br. in Supp. of Defendants Thomas Steelman, S.B. Spicer and the City of Grand Prairie's Mot. for Summ. J. at 7.
To state a claim upon which relief can be granted under section 1983, Plaintiff must show the deprivation of a right, privilege, or immunity that is secured by either the Constitution or laws of the United States. 42 U.S.C. § 1983; Mahone v. Addicks Utility Dist. of Harris County, 836 F.2d 921, 927 (5th Cir. 1988). It is beyond cavil that Plaintiff's complaint is not a model of pellucid draftsmanship. In any event, the court has undertaken the painstaking task of trying to decipher Plaintiff's pleadings. Taking a liberal and creative view of Plaintiff's contentions, the court determines that Plaintiff's theories in support of this claim fail for several reasons.
First, Plaintiff is essentially complaining that he was denied his constitutional rights because Defendants Spicer and Steelman did not investigate and prosecute L-3 and its employees for the alleged assault on the date of his termination. A person, however, does not have a constitutional right to have another person criminally investigated and prosecuted. See Oliver v. Collins, 914 F.2d 56, 60 (5th Cir. 1990); see also David v. Village of Oak Lawn, 954 F.Supp. 1241, 1245 (N.D. Ill. 1996) (stating that Plaintiff failed to identify a constitutionally protected interest for which he may seek damages under section 1983 when he contended that police officials conducted an improper investigation).
Second, although Plaintiff casts this claim in terms of a procedural due process liberty interest, his factual allegations simply do not give rise to any cognizable constitutionally protected due process liberty interest. Plaintiff states only generally and conclusorily, and not with particularity, that these allegations amount to his being denied a liberty interest. Further, Plaintiff fails to provide the court with any authority that would support his contention that the facts alleged constitute violations of a due process liberty interest. Despite Borninski's pro se status, the court will not expend scarce judicial resources searching for legal support for his claims. While a pro se litigant's pleadings and papers are to be liberally construed and not held to the same standard as those drafted by lawyers, the court is aware of no authority that requires it to be an advocate on behalf of any litigant and declines to do so in this case. If there is a statute or common law that provides Borninski with a cause of action, he should provide that authority to the court. To the extent Borninski does provide authority to the court, those authorities are inapplicable to the facts of this case. Moreover, Plaintiff is alleging that Grand Prairie Defendants denied him a due process liberty interest because of the manner in which they conducted their investigation of his assault complaint against L-3 Defendants. If the court accepted Plaintiff's rationale, it would be imposing an affirmative obligation on police officers to investigate, interview witnesses, confiscate evidence, and file complaints against third-parties at the behest of any complainant, despite what their own experience, training, and expertise would tell them is proper.
Haines v. Kerner, 404 U.S. 519, 520 (1972).
For example, in Borninski's brief, he cites several cases for numerous propositions including freedom from "unjustifiable intrusion upon personal security and bodily integrity[,] . . . intentional assault behavior, [and] . . . loss or destruction of personal property." Pl.'s Br. in Supp. of his Resp. to: Defs. Thomas Steelman, S.B. Spicer, and the City of Grand Prairie's Mot. for Summ. J. at 4. The facts in this case, however, are distinguishable as (1) Officer Spicer's pat-down of Borninski, as discussed in section III(A)(1)(b), infra., would not qualify as an unjustifiable intrusion upon personal security or bodily integrity, (2) Borninski is not alleging assault against Grand Prairie Defendants, and (3) the entire record is devoid of any competent summary judgment evidence suggesting that Grand Prairie Defendants seized or destroyed Borninski's personal property.
Third, as Borninski does not even suggest in his amended complaint or response that the brief detention amounted to a denial of liberty, the court is at a loss trying to decipher Borninski's pleadings in order to determine what liberty Borninski is claiming to have been denied. To the extent Borninski is attempting to assert that the brief detention was an impermissible denial of his due process liberty interest, this theory fails. In determining whether an investigatory detention and protective pat-down are permissible, the court must look to whether the officer was justified in initially detaining the individual and that the need for detention is supported by specific and articulable facts that reasonably warrant the intrusion. U.S. v. Riddeau, 949 F.2d 718, 719 (5th Cir. 1992). Here, the officer's reasons for detaining Plaintiff were to ensure that Plaintiff was not leaving with L-3's property (as Plaintiff had attempted to leave without allowing L-3 to inspect his briefcase) and also to ensure that Plaintiff was allowed to leave with property that was rightfully his. Once the officers inspected Plaintiff's briefcase and L-3 was able to remove company materials, Plaintiff was free to leave. That Plaintiff attempted to leave without allowing L-3 to inspect his belongings warranted Plaintiff's brief detention by the officers. Accordingly, Plaintiff's brief detention while L-3 employees and Borninski were questioned and his briefcase was searched is not sufficient to constitute a denial of liberty under the United States Constitution.
Competent summary judgment evidence from both Plaintiff and Grand Prairie Defendants indicates that the police officers conducted their investigation and arrived at reasonable conclusions based on their knowledge, training, and experience in dealing with similar situations. The court knows of no legal authority, and Plaintiff cites none, that strips a police officer of the discretion to decide whether to confiscate a third-party's property (in this case, L-3's security surveillance tapes); whether there is actually "clear evidence" of an assault; whether to file a complaint; or how to write a report. If this were so, every incident involving a police investigation could result in a lawsuit because someone was in disagreement or dissatisfied with the investigation's outcome or disagreed to a particular immaterial notation on a police incident report.
Fourth, while the court initially understood the crux of Plaintiff's claim to be that Grand Prairie Defendants' ultimate decision not to file an assault complaint against L-3 Defendants denied him a due process liberty interest, Borninski states in his response that "[i]t is not true that [P]laintiff complains about the fact [sic] that the investigation into [P]laintiff's assault claims did not result in charges against Williamson. Plaintiff [instead] complains because the [Grand Prairie Defendants] broke the law. . . ." Pl.'s Br. in Supp. of his Resp. to: Defs. Thomas Steelman, S.B. Spicer, and the City of Grand Prairie's Mot. for Summ. J. at 6. Plaintiff needs to be specific and consistent with his position. In any event, the court determines, for the reasons set forth in this opinion, that Plaintiff has not set forth competent summary judgment evidence that the police officers deprived him of a federally protected right. The court has expended significant judicial resources interpreting Borninski's pleadings and papers in this case and declines to hypothesize any further as to what harm Plaintiff allegedly suffered with respect to an alleged due process liberty interest.
Finally, with respect to Borninski's allegations that the Grand Prairie Defendants tampered with testimony and knowingly falsified a police report, Plaintiff relies solely on his conclusory statements and provides the court with insufficient facts to support the charge. To the extent that Borninski does back up his allegations with any evidence of testimony tampering and falsification of a police report, those facts are limited to Borninski's statements that (1) he did not consent to his belongings being searched and (2) he had asked to file an assault complaint as soon as the police officers arrived (and not, as indicated in the police report, when he was asked to leave the L-3 facility). As previously stated, those factual discrepancies, however, are immaterial and of no moment. Accordingly, there is no genuine issue of material fact regarding Plaintiff's due process liberty interest claim, and Grand Prairie Defendants are entitled to a judgment as a matter of law with respect to this claim.
See footnote 7, supra, for a detailed discussion of the facts Plaintiff alleges.
b. Due Process Property Interest
The court must now determine whether, based on the allegations and the summary judgment evidence, Grand Prairie Defendants denied Borninski a cognizable due process property interest. Borninski contends that he was deprived of a due process property interest because the officers "organized a search of his person and of his personal belongings by a third party[,] . . . authorized the taking of [his] personal possessions by the third party agents . . . and actively participated in the search." Id. at 7.
To establish a due process property interest claim under the Fourteenth Amendment, Plaintiff must present facts showing that he was deprived of a property interest. See Board of Regents v. Roth, 408 U.S. 564, 569-70 (1972); see also Mahone, 836 F.2d at 929. The court determines that Borninski's due process property interest claim fails as a matter of law. First, Borninski does not identify a cognizable property interest, and moreover, Borninski fails to provide competent summary judgment evidence that he had been deprived of his own property. Borninski's employment at L-3 had been suspended on the day Grand Prairie Defendants allegedly violated his due process property interest by searching through his belongings, authorizing a third-party to search his belongings, taking his personal possessions, and searching his person. See Pl.'s Br. in Supp. of his Resp. to: Defs. Thomas Steelman, S.B. Spicer, and the City of Grand Prairie's Mot. for Summ. J. at 7.
Pursuant to company policy at L-3, company materials, including confidential and proprietary information, could not be removed from its premises by an employee or former employee. As Borninski was leaving the L-3 facilities, L-3 security personnel detained him to allow them to determine whether the materials in his possession were company documents. Once the police officers arrived, L-3 employees and the police officers searched Borninski's possessions and identified several company materials. Borninski does not state in his deposition or through any other form of competent summary judgment evidence that his personal belongings were taken; instead, Borninski alleges that certain L-3 documents that he had prepared were confiscated. The facts as provided in Borninski's deposition are consistent with the conclusion that Borninski had attempted to leave L-3's facilities with company materials. Borninski states "the only companyrelated materials I had with me were my copies of emails and memos which I myself [had] written." Pl.'s App. in Supp. of his Br. in Supp. of his Resp. to: Defs. Thomas Steelman, S.B. Spicer, and the City of Grand Prairie Mot. for Summ. J. at 2 ¶ 5. Despite Borninski's insinuation, even if he prepared the documents, he did not have the right to remove those materials from L-3's facilities. Aside from Borninski's subtle inference that those "company-related" materials were his personal property, Borninski's amended complaint and response are devoid of any statement or competent evidence suggesting that Grand Prairie Defendants deprived him of his own property interest in anything. As the facts alleged do not support a finding that Borninski was deprived of any property interest, Borninski fails to establish the existence of a cognizable property interest of which he was deprived.
The court is aware that it is not uncommon for business entities and organizations to have these policies in effect to ensure that confidential, sensitive, classified or proprietary materials are not removed from company premises. This practice is not at all unusual in our society. Indeed, in this case, Borninski signed statements acknowledging the existence of such a policy. Further, he does not argue that he was not aware of such policies. Accordingly, the court will not address the matter further.
Second, to the extent Plaintiff is attempting to assert "the right to be free from unreasonable searches and seizures (4th Amendment)[,]" Plaintiff's claim fails as a matter of law. The question before the court is whether, in the circumstances surrounding the search of Borninski's person, his right to personal security was violated by an unreasonable search and seizure. "What the Constitution forbids is not all searches and seizures, but unreasonable searches and seizures." Terry v. Ohio, 392 U.S. 1, 8 (1968) (internal quotations and citations omitted). "[I]n determining whether the seizure and search were unreasonable our inquiry is a dual one — whether the officer's action was justified at its inception, and whether it was reasonably related in scope to the circumstances which justified the interference in the first place." Id. at 19-20. The police officers were acting under their duty to investigate the dispute at hand. Having determined that the already strained situation between L-3's employees and Borninski could potentially escalate, Officer Spicer approached Borninski, told him to remove his hands from his pocket, and conducted a pat-down on his person. At that point, the officer's knowledge was limited to what was relayed over the 911 telephone calls and what he had observed and learned from his discussions with the parties. Officer Spicer stated that he only patted Borninski down to see whether he had weapons, as it was a contentious situation. Officer Spicer was justified in evaluating the potential of violence and taking the necessary and limited precaution of patting Borninski's outer clothing down to ensure that he was not carrying a weapon. Officers encounter stressful situations on a daily, if not hourly, basis and it is their duty to act in the interest of protecting themselves and others. The court finds that Officer Spicer's patdown of Borninski's outer garments was justified and reasonably related in scope to the circumstances which justified the search in the first place.
Pl.'s Am. Compl. at 5.
For the reasons herein stated, Plaintiff has failed to show that Grand Prairie Defendants deprived him of a right secured by the Constitution, and his claims of denial of a due process property interest and unreasonable search and seizure fail as a matter of law. Accordingly, there is no genuine issue of material fact regarding this claim, and Grand Prairie Defendants are entitled to judgment as a matter of law.
2. Substantive Due Process
Borninski alleges that Grand Prairie Defendants violated his substantive due process rights in the following manner:
Steelman, Spicer, and [the Grand Prairie Police Department's] actions by which they deprived plaintiff of the liberty and property rights can hardly be construed as fair, reasonable, justifiable, and advancing the state good. In fact, they can be construed as deliberate and intentional law-subverting activities designed to conceal, disregard, and change the evidence of a crime, intimidate a victim of an assault, and shield the perpetrators from accountability. Plaintiff submits that the [Grand Prairie Defendants'] acts are very likely to shock the conscience of an average reasonable Dallas-area citizen.
Pl. App. in Supp. of his Br. in Supp. of his Resp. to: Defs. Thomas Steelman, S.B. Spicer, and the City of Grand Prairie Mot. for Summ. J. at 7. Although Plaintiff's complaint does not advance a "shock the conscience" theory as the basis for his due process claim, his response advances such a theory of liability. The court, therefore, addresses the "shock the conscience" theory of liability as asserted by Plaintiff.
The Due Process Clause provides that "[n]o State . . . shall deprive any person of life, liberty, or property, without due process of law. . . ." U.S. Const. Amend. XIV, § 1. A violation of substantive due process occurs if the state actor's conduct "can properly be characterized as arbitrary, or conscience shocking, in a constitutional sense." County of Sacramento v. Lewis, 523 U.S. 833, 847 (1998) (quoting Collins v. Harker Heights, 503 U.S. 115, 128 (1992)). The "shock the conscience" theory has several different characterizations or formulations. It has been described or characterized as conduct that "violates the decencies of civilized conduct"; conduct that is "so brutal and offensive that it [does] not comport with traditional ideas of fair play and decency"; conduct that "interferes with rights implicit in the concept of ordered liberty"; and conduct that "is so egregious, so outrageous, that it may fairly be said to shock the contemporary conscience." Lewis, 523 U.S. at 846-47 (internal quotations and citations omitted). In a substantive due process claim under this theory, "the threshold question is whether the behavior of the governmental officer is so egregious, so outrageous, that it may fairly be said to shock the contemporary conscience." Id. at 847 n. 8. The inquiry does not necessarily end here. "If this standard is met, a court must next determine whether there exist historical examples of recognition of the claimed liberty protection at some appropriate level of specificity." Morris v. Dearborne, 181 F.3d 657, 668 (5th Cir. 1999) (citing Lewis, 523 U.S. at 847 n. 8). If the conduct does not reach the level of being so egregious or outrageous to shock the contemporary conscience, no substantive due process violation exists. Id. The question that the court must therefore decide is whether Plaintiff produces evidence setting forth conduct which rises to the level of being outrageous or egregious in a constitutional sense and therefore raises a genuine issue of material fact as to Plaintiff's claim of substantive due process deprivation.
The essence of Plaintiff's allegations is that Steelman, Spicer, and other city officials deliberately and intentionally undermined his rights during their investigation of the May 25, 2000 events at L-3's facilities and that their refusal to charge certain L-3 employees with an assault is conduct that is so egregious that it would "shock the conscience" of those in present day society. The court disagrees. Plaintiff's response has all the correct buzzwords and legal jargon in describing Grand Prairie Defendants' conduct. For example, his response is liberally sprinkled with words and phrases such as "deliberate and intentional law-subverting," "conceal," "disregard," "change the evidence of a crime," "intimidate a victim of an assault," "shield the perpetrators from accountability," and "shock the conscience"; however, this liberal sprinkling, absent proof, does not create a genuine issue of material fact. Construing the evidence in the light most favorable to Plaintiff, the court determines that the proof submitted by him does not remotely approach the level necessary to establish "conscience-shocking" conduct on the part of the officers regarding their investigation of Borninski's charges. The police officers were called to the scene, notably by both Plaintiff and L-3 Defendants, to investigate the matters surrounding Plaintiff's employment suspension and L-3 Defendants' alleged assault of Plaintiff.
First, as discussed in section III(3)(b), supra., the police officers' decision to pat-down Plaintiff was reasonable in light of the fact that the incident at L-3's facilities involved him, and the police were assessing the situation for the safety of themselves and others. Second, their decision not to file an assault complaint was also reasonable in light of their investigation, which included engaging Plaintiff in a reenactment of what happened, talking with Plaintiff and other witnesses, and basing their decision on police training and experience in handling similar matters. Third, the court cannot conclude that their decision not to initially take the videotapes of the alleged assault was unreasonable in light of the reenactment conducted of the alleged assault. Moreover, at the continued insistence of Plaintiff, the videotape was reviewed on June 1, 2000, by another Grand Prairie police officer and his report confirmed the findings of Officers Steelman and Spicer that no assault on Borninski had taken place. See Pl.'s App. in Supp. of his Brief in Supp. of his Resp. to: Defs. Thomas Steelman, S.B. Spicer, and the City of Grand Prairie Mot. for Summ. J. at 5. The videotape, therefore, did not change Grand Prairie Defendants' assessment of Plaintiff's assault allegations.
Finally, Plaintiff's conclusory allegations that the police tampered with his testimony and falsified the police report are of no moment, as the particular facts he asserts in support of his allegations of impropriety are without merit, and would not change the court's disposition of Plaintiff's claims. Specifically, Plaintiff claims that (1) the police report states he wanted to report the assault only after he was asked to leave, (2) the officer was not cooperating with him in the demonstration, and (3) he did not consent to the search. These facts, taken as true, are immaterial, as they do not form a proper "shock the conscience" basis of a substantive due process violation. The conduct alleged against these officers does not even approximate conduct that would "shock the conscience."
A survey of cases in which a plaintiff has established that the state actor's conduct shocked the conscience, or those where a court has stated that a reasonable fact finder could find the conduct to be conscience-shocking, reveals that all require that the conduct evince an intent to cause harm, or show a deliberate act to bring about the specific injury to the plaintiff. See, e.g., Neal v. Fulton County Bd. of Educ., 229 F.3d 1069, 1075-76 (11th Cir. 2000) (student blinded in one of his eyes when a coach intentionally hit him in the head with a metal weight); Morris v. Dearborne, 181 F.3d 657, 668 (5th Cir. 1999) (teacher's fabrication of sex abuse charges against a student's father); Rogers v. City of Little Rock, 152 F.3d 790, 797 (8th Cir. 1998) (rape of a woman at her house by a police officer after he stopped her for a traffic violation); Hemphill v. Schott, 141 F.3d 412, 419 (2d. Cir. 1998) (assistance provided by police officer to a third party in shooting the plaintiff); Harrington v. Almy, 977 F.2d 37, 43-44 (1st Cir. 1992) (police officer ordered to submit to a psychological examination, which included a penile plethysmograph, or be terminated); Checki v. Webb, 785 F.2d 534, 538 (5th Cir. 1986) (state trooper intentionally used his vehicle to terrorize motorist and passenger); Shillingford v. Holmes, 634 F.2d 263, 265 (5th Cir. 1981) (police officer intentionally struck tourist because he was photographing the police officer and fellow officers apprehending a boy on the street during Mardi Gras parade). That these cases involve conduct far worse than that shown by Plaintiff against Grand Prairie Defendants necessarily establishes that Plaintiff's claim fails to reach the level of a substantive due process deprivation. The court has pored over the summary judgment record in this case and Plaintiff sets forth no evidence that establishes, or raises a genuine issue of material fact, that the Grand Prairie Defendants engaged in conduct so outrageous or egregious in a constitutional sense that would shock the contemporary conscience.
The court's review of Plaintiff's assertions and proof in support of his claims against Grand Prairie Defendants reveals that Plaintiff fails to satisfy the requirements for a showing of a substantive due process violation. Accordingly, the court finds no genuine issue of material fact and Grand Prairie Defendants are entitled to judgment as a matter of law with respect to Borninski's claim that Grand Prairie Defendants denied him his substantive due process rights.
B. Equal Protection Claim
Regarding his equal protection claim, Borninski contends that
[Grand Prairie] Defendants denied him equal protection as follows: 1. Steelman subjected [P]laintiff to a personal search "for weapons" because [P]laintiff put his hands in his pockets. Steelman subsequently body-searched [P]laintiff, and refused to search a similarly-situated [L-3 Employee,] Emry[,] who also had his hands in his pockets and who was pointed out to Steelman by [P]laintiff . . . This Steelman act was intentional and discriminatory, and designed to intimidate [Plaintiff; and] 2. It is clear that an average Dallas-area police department does not conceal or tamper with evidence, does not perform unauthorized searches and seizures, does not intimidate citizens, and generally does not perform such acts as listed in this complaint. . . .
Pl.'s Br. in Supp. of his Resp. to: Defs. Thomas Steelman, S.B. Spicer, and the City of Grand Prairie's Mot. for Summ. J. at 7-8. The crux of Borninski's allegations are twofold. First, he contends that he was denied equal protection of the laws because the police officers allegedly singled him out for a pat-down search. Second, Borninski complains that he was denied equal protection because the police officers allegedly concealed or tampered with evidence and intimidated him.
The Equal Protection Clause provides that "[n]o State shall . . . deny to any person within its jurisdiction the equal protection of the laws." U.S. Const. amend. XIV., § 1. The Equal Protection Clause requires that "all persons similarly circumstanced shall be treated alike." Plyler v. Doe, 457 U.S. 202, 216 (1982). An Equal Protection inquiry is necessary only if the state action in question "classifies or distinguishes between two or more relevant groups." Qutb v. Strauss, 11 F.3d 488, 492 (5th Cir. 1993), cert. denied, 511 U.S. 1127 (1994).
Borninski contends that he "has the [c]onstitutional rights to the due process of law and equal protection (14th Amendment)." Pl.'s Am. Compl. at 5. Even a liberal and imaginative reading of Plaintiff's allegations against Grand Prairie Defendants, however, does not come remotely close to establishing an equal protection violation. Put simply, Plaintiff has provided no factual basis to state or establish a claim under the Equal Protection Clause. Plaintiff does not even identify two separate classifications in his claim; nevertheless, out of an abundance of caution, the court sifts through Plaintiff's poorly drafted amended complaint and response in search of an equal protection violation and sets forth the fundamentals of Borninski's equal protection claim through his own words.
With respect to the pat-down search, Borninski's equal protection claim is simply without merit. Borninski contends that because he was patted down and Emry, who also had his hands in his pockets, was not patted down, the police officers did not treat similarly circumstanced persons alike. The court, however, determines that there are sufficient undisputed facts to conclude that Emry and Borninski were not similarly circumstanced. Borninski's employment at L-3 had just been suspended; he had attempted to leave L-3's facilities with "company-related materials"; he was the center of the police inquiry, as it was his briefcase that L-3 employees wanted to inspect prior to his leaving the facilities; and he had alleged an assault against certain L-3 employees. Emry, on the other hand, was not the center of an inquiry, had not been suspended from employment, and had not attempted to leave with, in Borninski's own words, "company-related materials." See Pl. Aff. at 2. Based on the uncontested facts, the court concludes that Borninski and Emry were not similarly situated and Borninski was not treated differently than others similarly situated. Accordingly, there is no genuine issue of material fact regarding Plaintiff's equal protection claim, and Grand Prairie Defendants are entitled to a judgment as a matter of law with respect to this claim.
With respect to Plaintiff's claim that Grand Prairie Defendants tampered and concealed evidence, he provides no competent summary judgment evidence that even remotely supports this contention. As stated before, see footnote 7, supra, Plaintiff simply contends that Steelman and Spicer "tampered" with testimony, as their report seems to indicate that "[P]laintiff did not make it known to Steelman and [Spicer] that [P]laintiff had been assaulted by Williamson and Springer until after [P]laintiff was asked to leave [L-3]." Pl.'s App. in Supp. of his Br. in Supp. of his Resp. to: Defs. Thomas Steelman, S.B. Spicer, and the City of Grand Prairie Mot. for Summ. J. at 4. For the reasons stated previously in this order, such statements by Plaintiff are of no moment and do not present material fact questions with respect to Plaintiff's claims against Grand Prairie Defendants. The court now examines Grand Prairie Defendants' qualified immunity defense.
C. Qualified Immunity
The court has determined that Defendants Steelman and Spicer are entitled to summary judgment on the merits as to all of Plaintiff's claims; however, even if Defendants Steelman and Spicer are not entitled to summary judgment on the merits, they are entitled to summary judgment on the basis of qualified immunity. Officers Steelman and Spicer contend in their motion, that (1) they are not liable, as qualified immunity shields public officials from civil lawsuits unless their conduct violates clearly established constitutional rights of which a reasonable person would have known and (2) they were acting in their official capacities and did not violate any clearly established constitutional rights. Plaintiff contends that Defendants Steelman and Spicer are not entitled to qualified immunity because "[q]ualified immunity is award[ed] to [those] government agents that obey the law and who behave in a reasonable manner given." Pl.'s Br. in Supp. of his Resp. to: Defs. Thomas Steelman, S.B. Spicer, and the City of Grand Prairie's Mot. for Summ. J. at 7-8.
Further, Borninski contends that Officer Steelman and Spicer as not eligible for qualified immunity, as they "[r]efused to take possession of the clear and known evidence of the assault on [P]laintiff[;] [t]ampered with [P]laintiff's testimony given in the matter of the assault[;] forced [P]laintiff into a discriminatory body search[;] forced [P]laintiff into an unauthorized search of [P]laintiff's belongings, without justification, and under [P]laintiff's objections[; and] [k]nowingly falsified a police report." Id. at 4. Additionally, Borninski contends that "Steelman conferred and conspired with [L-3 employees] to alter [his] testimony about the assault to make the incident look favorable for [L-3;] Spicer . . . conferred, colluded[,] and conspired with [L-3 employees] to help [them] conceal and likely destroy two security video cameras and tapes that recorded the assault on [P]laintiff, and knowingly misrepresented certain facts" in the police report. Id. In sum, the crux of Plaintiff's argument against qualified immunity for Officers Steelman and Spicer is that "qualified immunity is designed to protect law-abiding officers" and Steelman and Spicer were not following the law. See id. at 5.
Plaintiff states that Spicer misrepresented facts in the report. "For example, he fabricated that [P]laintiff did not voice his assault complaint only after [P]laintiff was asked to leave the premises." Pl.'s Br. in Supp. of his Resp. to: Defs. Thomas Steelman, S.B. Spicer, and the City of Grand Prairie's Mot. for Summ. J. at 5. As the court previously stated, this "misrepresentation" is of no moment; however, it accepts Borninski's version of this fact — that he voiced his assault complaint when the officers arrived at the scene.
Government officials who perform discretionary functions are entitled to the defense of qualified immunity, which shields them from suit as well as liability for civil damages, if their conduct does not violate "clearly established statutory or constitutional rights of which a reasonable person would have known." Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). A defendant official must affirmatively plead the defense of qualified immunity. Gomez v. Toledo, 446 U.S. 635, 640 (1980). Grand Prairie Defendants plead this defense in their motion.
In deciding a motion for summary judgment that raises the defense of qualified immunity, the court must first decide "whether the plaintiff has alleged the deprivation of an actual constitutional right at all, and if so, proceed to determine whether the right was clearly established at the time of the alleged violation." Conn v. Gabbert, 526 U.S. 286, 290 (1999) (citing Siegert v. Gilley, 500 U.S. 226, 232-33 (1991)); see also Kerr v. Lyford, 171 F.3d 330, 339 (5th Cir. 1999). The second prong of the test requires the court to make two separate inquiries: whether the right allegedly violated was clearly established at the time of the event giving rise to the plaintiff's claim, and if so, whether the conduct of the defendant was objectively unreasonable. Evans v. Ball, 168 F.3d 856, 860 (5th Cir. 1999). Although many cases continue to state that the determination of the qualified immunity issue requires the application of a bifurcated test, the analytical framework for resolving issues of qualified immunity necessarily requires, or may require, a three-step analysis. See Kerr, 171 F.3d at 339; Evans, 168 F.3d at 860; Hare v. City of Corinth, 135 F.3d 320, 326 (5th Cir. 1998); Eugene v. Alief Indep. Sch. Dist., 65 F.3d 1299, 1305 (5th Cir. 1995), cert. denied, 517 U.S. 1191 (1996). Whether a defendant acted within the scope of his authority performing a discretionary function and whether a reasonable official in his position would have deemed his conduct unconstitutional are not to be considered by the court unless each part of the three-step inquiry has been answered affirmatively on behalf of the plaintiff. Kerr, 171 F.3d at 339. In other words, only after a plaintiff demonstrates the existence and violation of a clearly established constitutional or statutory right is the defendant required to show that he was performing a discretionary function and that a reasonable official would not have considered his actions to be unconstitutional at the time of the incident in question. Id. at 338. A right is "clearly established" only when its contours are sufficiently clear that a reasonable public official would have realized or understood that his conduct violated the right in issue, not merely that the conduct was otherwise improper. See Anderson v. Creighton, 483 U.S. 635, 640 (1987); Foster v. City of Lake Jackson, 28 F.3d 425, 429 (5th Cir. 1994). Thus, the right must not only be clearly established in an abstract sense but in a more particularized sense so that it is apparent to the official that his actions are unlawful in light of pre-existing law. Anderson, 483 U.S. at 640; Stefanoff v. Hays County, 154 F.3d 523, 525 (5th Cir. 1998); and Pierce v. Smith, 117 F.3d 866, 871 (5th Cir. 1997).
In Anderson, 483 U.S. at 635, the Supreme Court refined the qualified immunity standard and held that the relevant question is whether a reasonable officer or public official could have believed that his conduct was lawful in light of clearly established law and the information possessed by him. Id. at 641. If public officials or officers of "reasonable competence could disagree [on whether an action is legal], immunity should be recognized." Malley v. Briggs, 475 U.S. 335, 341 (1986); Gibson v. Rich, 44 F.3d 274, 277 (5th Cir. 1995) ( citing Babb v. Dorman, 33 F.3d 472, 477 (5th Cir. 1994)). Qualified immunity is designed to protect from civil liability "all but the plainly incompetent or those who knowingly violate the law." Malley, 475 U.S. at 341. Conversely, an official's conduct is not protected by qualified immunity if, in light of clearly established preexisting law, it was apparent the conduct, when undertaken, would be a violation of the right at issue. Foster, 28 F.3d at 429. To preclude qualified immunity, it is not necessary for plaintiff to establish that "the [specific] action in question has previously been held unlawful." Anderson, 483 U.S. at 640. For an official, however, to surrender qualified immunity, "pre-existing law must dictate, that is, truly compel (not just suggest or allow or raise a question about), the conclusion for every-like situated, reasonable government agent that what the defendant is doing violates federal law in the circumstances." Pierce, 117 F.3d at 882; Stefanoff, 154 F.3d at 525.
Even if one assumes that Plaintiff has alleged constitutional violations, the record necessarily establishes that Steelman and Spicer's conduct was not objectively unreasonable. In other words, the court determines that a reasonable police officer standing in the shoes of Spicer and Steelman could have believed that the actions they took with respect to Borninski did not violate clearly established law of which a reasonable police officer would have known. Moreover, even if reasonable police officers could disagree whether Spicer and Steelman's conduct was objectively reasonable, qualified immunity should be recognized. See Malley, 475 U.S. at 341.
To defeat the officers' entitlement qualified immunity, Borninski would have to establish that no reasonably competent police officer could have believed that the actions taken by Steelman and Spicer with respect to the assault complaint by Borninski were reasonable. The court determines, for the reasons previously stated in this opinion, that a reasonably competent police officer could have believed that, in light of existing law and the information known to Steelman and Spicer, the actions taken by them regarding the brief detention, pat-down, search of the briefcase, and decision not to file assault charges against the L-3 employees were not objectively unreasonable. Accordingly, no genuine issue of material fact exists regarding Defendants Steelman and Spicer's entitlement to qualified immunity with respect to all of Plaintiff's claims, and they are entitled to judgment as a matter of law.
D. Conspiracy to Interfere with Civil Rights
The court now addresses Plaintiff's claims that Grand Prairie Defendants conspired to violate his constitutional rights under 42 U.S.C. § 1983 and 42 U.S.C. § 1985. Plaintiff asserts a theory of conspiracy among the several police officers and the city to violate his civil rights. In support of his conspiracy claims, Plaintiff contends that Grand Prairie Defendants (1) allowed L-3 to dismount security cameras and conceal security tapes of L-3's assault on him; (2) tried to alter his testimony to corroborate with the testimony of L-3 employees; (3) met with L-3 employees outside L-3 facilities before arriving at the scene; and thus (4) conspired to deprive him of his rights under 42 U.S.C. § 1983.
In Plaintiff's amended complaint, he states, "Defendants have violated [P]laintiff's Civil and Constitutional Rights of due process and equal protection, engaged in a conspiracy to deprive [P]laintiff of his rights, and are liable under 42 U.S.C. § 1983 and 42 U.S.C. § 1985[.]" Pl.'s Am. Civ. Compl. and Jury Demand at 6. Though Plaintiff's amended complaint is unclear, the court reads it as asserting conspiracy claims under both section 1985 and section 1983.
Grand Prairie Defendants contend that (1) Plaintiff has failed to establish liability for any of his 42 U.S.C. § 1983 claims and therefore cannot maintain a claim for conspiracy under 42 U.S.C. § 1985; and (2) Plaintiff failed to allege that he is a member of a protected class or show that they formed a conspiracy based upon class based animus or took any act pursuant to such a conspiracy. Grand Prairie Defendants contend that they are, therefore, entitled to judgment as a matter of law on Plaintiff's conspiracy claim under 42 U.S.C. § 1985, as a conspiracy claim is not actionable without an actual violation of § 1983.
It is unclear from Grand Prairie Defendants' motion and reply whether they seek summary judgment on only Plaintiff's section 1985 conspiracy claim, or on both section 1983 and section 1985 conspiracy claims. Because Grand Prairie Defendants cite the appropriate test and case law for a conspiracy claim under section 1983 and explicitly seek judgment as a matter of law on the section 1985 conspiracy claim, the court reads Grand Prairie Defendants' motion for summary judgment as seeking judgment as a matter of law on both Plaintiff's section 1983 conspiracy claim and his section 1985 conspiracy claim.
1. Conspiracy claim under Section 1983
To establish a conspiracy under section 1983, Plaintiff must establish "(1) the existence of a conspiracy involving state action and (2) a deprivation of civil rights in furtherance of the conspiracy by a party to the conspiracy." Pfannstiel v. City of Marion, 918 F.2d 1178, 1187 (5th Cir. 1990). Liability may be imposed under § 1983 based upon a conspiracy; however, a conspiracy claim is not actionable unless there is an actual constitutional or statutory violation. See Kerr v. Lyford, 171 F.3d at 340-41; Hale v. Townley, 45 F.3d 914, 920 (5th Cir. 1995); Cinel v. Connick, 15 F.3d 1338, 1343 (5th Cir. 1994). The court has ruled that Plaintiff has not established the violation of an actual constitutional right. Since there is no constitutional violation, there is no derivative conspiracy claim. Accordingly, there is no genuine issue of material fact regarding a claim of conspiracy, and Grand Prairie Defendants are entitled to judgment as a matter of law.
2. Conspiracy claim under Section 1985
Section 1985 contains three subsections. Subsection 1 relates to conspiracy to prevent a public official from performing his duties; subsection 2 relates to conspiracy to obstruct justice or to intimidate a party, witness, or juror; and subsection 3 relates to the acts of multiple persons conspiring to deprive any person of certain civil rights. Holdiness v. Stroud, 808 F.2d 417, 424 (5th Cir. 1987). Plaintiff does not specify the subsection on which his claim is based. Given the allegations of his complaint, it appears that Plaintiff attempts to invoke subsection 3. Subsection 3 provides
If two or more persons . . . conspire . . . for the purpose of depriving, either directly or indirectly, any person or class of persons of the equal protection of the laws, or of equal privileges and immunities under the laws; . . . in any case of conspiracy set forth in this section, if or more persons engaged therein do, or cause to be done, any act in furtherance of the object of such conspiracy, whereby another is injured in his person or property, or deprived of having and exercising any right or privilege of a citizen of the United States, the party so injured or deprived may have an action for the recovery of damages, occasioned by such injury or deprivation, against any one or more conspirators.42 U.S.C. § 1985(3). To establish a claim under 42 U.S.C. § 1985(3), a plaintiff must show (1) a conspiracy involving two or more persons, (2) for the purpose of depriving, either directly or indirectly, a person or class of persons of the equal protection of the laws; and (3) an act in furtherance of the conspiracy, (4) which causes injury to a person or property, or a deprivation of any right or privilege of a citizen of the United States. United Bhd. of Carpenters Joiners of Am. v. Scott, 463 U.S. 825, 828-29 (1983); Hillard v. Ferguson, 30 F.3d 649, 652-53 (5th Cir. 1994); Suttles v. United States Postal Service, 927 F.Supp. 990, 1001 (S.D. Tex. 1996). Plaintiff must also assert "`some racial, or perhaps otherwise class-based, invidiously discriminatory animus behind the conspirators' action.'" Suttles, 927 F.Supp. at 1001 (quoting Griffin v. Breckenridge, 403 U.S. 88, 102 (1971)).
As discussed with respect to Plaintiff's equal protection claims, he does not assert, much less establish, a racial or otherwise class-based discriminatory animus behind the alleged conspirators' actions. This alone is sufficient to cause his claim to fail under section 1985. Moreover, he has not established that he has been deprived of any right or privilege by Grand Prairie Defendants' conduct. Plaintiff's claim of conspiracy under section 1985, therefore, necessarily fails as a matter of law. Accordingly, there is no genuine issue of material fact, and Grand Prairie Defendants are entitled to judgment as a matter of law.
E. Municipal Liability
Plaintiff contends that the city "established official customs, policies, procedures, common practice, tradition, or failed to establish the same, which led to the injuries and damages inflicted on [P]laintiff." Pl.'s Am. Civ. Compl. and Jury Demand at 7. He contends further that the police officers had knowledge of Defendants Steelman and Spicer's conduct and took no action to prevent them from their unlawful conduct.
The city contends that (1) no constitutional deprivation occurred; (2) Plaintiff cannot prove that any constitutional deprivation was caused by a policy, practice or custom of Grand Prairie; and (3) Plaintiff cannot identify any other incident that would suggest that Grand Prairie has a policy, practice, or custom to violate the rights of persons such as Plaintiff, or a single act or decision of a person with final decision-making authority that would have caused any deprivation of Plaintiff's constitutional rights in this case.
A governmental entity can be sued and subjected to monetary damages and injunctive relief under 42 U.S.C. § 1983 only if its official policy or custom causes a person to be deprived of a federally protected right. Board of the County Comm'rs of Bryan County v. Brown, 520 U.S. 397, 403 (1997); Monell v. New York City Dep't of Soc. Servs., 436 U.S. 658, 694 (1978). A governmental entity cannot be liable for civil rights violations under a theory of respondeat superior or vicarious liability. Id. See also Baskin v. Parker, 602 F.2d 1205, 1208 (5th Cir. 1979). Official policy is defined as:
1. A policy statement, ordinance, regulation, or decision that is officially adopted and promulgated by the [city] 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 wellsettled as to constitute a custom that fairly represents [city] policy. Actual or constructive knowledge of such custom must be attributable to the governing body of the [city] or to an official to whom that body had delegated policy-making authority.Webster v. City of Houston, 735 F.2d 838, 841 (5th Cir. 1984) ( en banc) (per curiam); Bennett v. City of Slidell, 735 F.2d 861, 862 (5th Cir. 1984) ( en banc) (per curiam), cert. denied, 472 U.S. 1016 (1985). A plaintiff must identify the policy, connect the policy to the governmental entity itself and show that his injury was incurred because of the application of that specific policy. Bennett v. City of Slidell, 728 F.2d 762, 767 (5th Cir. 1984), cert. denied, 472 U.S. 1016 (1985). A plaintiff must establish that the governmental entity through its deliberate conduct was the "moving force behind the injury alleged" and must establish a direct causal link between the governmental entity's action and the deprivation of a federally protected right. Bryan County v. Brown, 520 U.S. at 404.
Liability must rest on official policy, meaning the governmental entity's policy, and not the policy of an individual official. Bennett, 728 F.2d at 769. The official complained of must possess
[f]inal authority to establish [city] policy with respect to the action ordered. . . . The official must also be responsible for establishing final government policy respecting such activity before the [city] can be held liable. . . . [W]hether an official had final policymaking authority is a question of state law.Pembaur v. City of Cincinnati, 475 U.S. 469, 481-482 (1986). An employee, agency, or board of a governmental entity is not a policymaker unless the governmental entity, through its lawmakers, has delegated exclusive policymaking authority to that employee agency or board and cannot review the action or decision of the employee, agency or board. See City of St. Louis v. Praprotnik, 485 U.S. 112,127 (1988); Worsham v. City of Pasadena, 881 F.2d 1336, 1340-41 (5th Cir. 1989).
If a plaintiff fails to raise a fact issue concerning any underlying constitutional violation, the governmental entity is not liable as a matter of law. City of Los Angeles v. Heller, 475 U.S. 796, 799 (1986). In other words, if a plaintiff cannot establish an underlying constitutional violation, the alleged unconstitutional policy as a matter of law cannot be the basis of governmental liability.
Plaintiff's claim of municipal liability fails for three reasons: (1) his failure to show that he was injured as a result of a policy or custom of the City of Grand Prairie, (2) his failure to establish deliberate indifference on the part of the City of Grand Prairie, and (3) his failure to establish an underlying constitutional violation. First, other than loose and conclusory statements and allegations, Plaintiff produces nothing that connects these alleged policies to the City of Grand Prairie or to someone to whom it has delegated policy-making authority. At best, his allegations and statements that the City of Grand Prairie has unconstitutional policies or customs are speculative and conjectural. Second, with respect to Plaintiff's allegations and statements that the City of Grand Prairie failed to adopt policies or failed to train its police officers, section 1983 liability can be imposed on a municipality only if it is shown that such failure "amounts to deliberate indifference to the rights of persons with whom the police come into contact." City of Canton v. Harris, 489 U.S. 378, 388 (1989). The record is devoid of any evidence that the Grand Prairie City Council or an official to whom it delegated policy-making authority acted with deliberate indifference to violate the rights of citizens with whom its police officers would come into contact. Third, the court has ruled that Plaintiff has suffered no violation of his constitutional rights as a result of the conduct of the individual officers. If no underlying constitutional injury is present, the alleged unconstitutional policy or custom "is quite beside the point" and cannot be the basis for municipal liability. Heller, 475 U.S. at 799. As Plaintiff fails to raise a genuine issue of material fact with respect to his claims against Grand Prairie, they cannot survive summary judgment. Accordingly, Defendant City of Grand Prairie is entitled to judgment as a matter of law on all of Plaintiff's municipal claims.
IV. Conclusion
For the reasons stated herein, no genuine issues of material fact exist with respect to Plaintiff's claims, and Grand Prairie Defendants are entitled to judgment as a matter of law with respect to all claims. Accordingly, the court grants Defendants Thomas Steelman, S.B. Spicer and City of Grand Prairie's Motion for Summary Judgment; vacates its July 27, 2004 Order; and reinstates its March 1, 2004 Order granting Defendant Kinecta Federal Credit Union's Motion for Summary Judgment. The court dismisses with prejudice all claims against Grand Prairie Defendants. The court will issue judgment by separate document pursuant to Fed.R.Civ.P. 58.
It is so ordered.