Opinion
Civil Action No. 1:96cv39-D-D
July 14, 1997
MEMORANDUM OPINION
Presently before the court is the motion of the defendant Maury Schuh for the entry of summary judgment on his behalf as against the plaintiff's claims in this cause. Finding that the motion is partially well taken, the undersigned shall grant it in part and deny it in part.
In ruling on a motion for summary judgment, the court is not to make credibility determinations, weigh evidence, or draw from the facts legitimate inferences for the movant. Anderson v. Liberty Lobby. Inc., 477 U.S. 242, 255, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). Rather, the evidence of the nonmovant is to be believed, and all justifiable inferences are to be drawn in his favor. Anderson. 477 U.S. at 255. The court's factual summary is so drafted.
On March 7, 1995, an individual called the Wal-Mart Supercenter Pharmacy in Tupelo, Mississippi. The individual spoke to Jeannie Kisner, a Wal-Mart pharmacist, and told Ms. Kisner that they were calling in a refill on a prescription for a generic version of the drug Xanax. Ms. Kisner recognized the name on the refill, Ms. Gladys Welch, and knew Ms. Welch to be an elderly woman. Believing the caller to be a younger woman, Ms. Kisner relayed her concerns to Frank Yeilding, another Wal-Mart pharmacist. Yeilding, in turn, called Ms. Welch to ask her about the Xanax refill.
Substantial dispute exists in the record before this court as to the identity of this individual. Evidence suggests various persons, including the plaintiff, Ms. Welch herself, one of Ms. Welch's physicians, as well as a female employee of one of Ms. Welch's physicians.
The substance of the conversation between Yeilding and Ms. Welch is a matter of dispute. According to Ms. Welch, very little information, if any, was exchanged:
A: . . . .So that druggist called me, and I was sick anyway, and he wouldn't tell me who — I asked him who he was, and he wouldn't tell me. He was asking all kinds of questions about my drugs. Well, I just kind of figured it was a prank call, and I just hung the phone up.
A: . . . [H]e should have at least told me who he was and not — because I wasn't going to tell him anything, not about my drugs, because I didn't know who he was. And I just thought, well, this is none of your business.
Exhibit "D" to Plaintiff's Response, Deposition of Gladys Welch, pp. 15-16. Ms. Welch does seem a little unclear, however, as to precisely what was said during this phone call:
Q: Okay. What did this person call you, what did they say to you?
A: They just asked me did I give permission to pick my drugs up, and I said, yes, I did. Pam and Roy was the one I asked to pick them up.
Q: Did you tell them that "I asked Pam and Roy to go pick up them up?"
A: After I called them back the second time. I didn't tell them anything the first time.
Q: Okay, well, let me ask you this: On the first call, did the person ask you, Mrs. Welch, have you — have you authorized anybody to come pick up your medicine for you?
A: Yeah, now, he asked me that.
Q: And what did you tell him?
A: I told him I had, my daughter and son-in-law.
Q: Okay, that was on the first call?
A: Yeah.
Exhibit "D" to Plaintiff's Response, Deposition of Gladys Welch, pp. 22-23, 25 (emphasis added). Mr. Yeilding, however, remembers this phone call rather differently:
When I spoke to Ms. Welch, she informed me that no one was authorized to pick up her prescriptions, that she did not have any prescriptions to be picked up that day, that she no longer used Wal-Mart and that no one was to pick up her medicine for her.
Exhibit "B" to Defendant's Motion, Affidavit of Frank Yeilding, unnumbered p. 2. After calling Ms. Welch, Mr. Yeilding then made additional calls:
I then contacted her OB-GYN's office who had proscribed the medication and was informed not to release the medicine to anyone, that the prescription was canceled and was not to be filled, and that their office had been notified that there were some other problems with this prescription that had perhaps been raised by other [pharmacies] and had been noted in the file. I then contacted Maury Schuh at the Lee County Sheriff's Department and informed him of the situation and communicated to him all of the information I had at that time and that someone was attempting to pick up a refill without authorization.Id. The plaintiff does not dispute the existence of these telephone calls by Yeilding, nor the contents of those conversations, with any admissible evidence. Sometime after these two interim calls were completed, Ms. Welch called the Wal-Mart pharmacy. Again, the content of this call
is also disputed. Mr. Yeilding's recollection of the conversation is that: Shortly after, I received a phone call from Ms. Gladys Welch who attempted to claim that at the time that she had forgotten about the refill. When I challenged her on this contention she stated that she felt she knew who was attempting to pick up her refill and that she did not want to get them into trouble. I informed her that I had a duty to report attempts to obtain prescriptions by fraud, that I had already contacted the Lee County Sheriff's Department and that whoever attempted to pick up the refill would be arrested.Id. Ms. Welch's recall is only slightly different, but different nonetheless. Again, there appears to be some inconsistency concerning what occurred even within her own testimony:
A: So I called back the drugstore. . . . And [Yeilding] got on the phone, and he — he told me, he said, well, there is no need to call back now, I have already called the law. I said, for what? So he told me. So I knew they went up there and picked them up. I just said all right, and I hung the phone up.
A: . . . I told him, I said, well, if you don't believe that Dr. Burrus called it in, you call him and ask him.
A: So when I called back, he had already called the law.
Q: Okay.
A: And I asked him for what, and he never did say a word.
Q: Did you tell them that "I asked Pam and Roy to go pick up them up?"
A: After I called them back the second time. I didn't tell them anything the first time.
Q: Did [Yeilding] ask you again if you had authorized somebody to pick it up?
A: No. He just told me he had already called the law. I just said, well, fine, and hung the phone up.
Exhibit "D" to Plaintiff's Response, Deposition of Gladys Welch, pp. 15-16, 22-24, 30.
In any event, Lee County Deputy Sheriff Maury Schuh and another officer arrived at Wal-Mart and waited for someone to attempt to pick up Ms. Welch's prescription. Schuh discussed the situation with the pharmacists at Wal-Mart:
Q: Okay. All right. Tell me what the conversation was you had with the pharmacists while you were at Wal-Mart on the 7th.
A: That — this is my conversation that I recall. You know, we talked about that there was going to be a somebody — it was a white female, it appeared in the voice, that was going to attempt to pick up a prescription of Gladys Welch and that — excuse me. The pharmacist had called, which I believe was Jeannie Kisner, had called to verify whether anybody was supposed to pick up the medication. Mrs. Welch had told them, no, nobody was supposed to be picking up any medicine for her. Then they told me that they had contacted the doctor involved with this and the doctor had told them not to issue the prescription.
A: I believe that the pharmacists said that the person had called and told them that they were in town and they'd be coming by just shortly to pick it up. And Ms. Welch had called back to the pharmacy and told the pharmacist that she thought she knew who was going to be trying to pick it up, that they — she didn't want to get them in trouble, but they weren't supposed to get her medication. And the pharmacist there told them that they had already notified the law enforcement authorities to meet them when they attempted to pick up the prescription.
But she again told the pharmacist that nobody was supposed to pick up the prescription, but she didn't want to get them in trouble. And I take it that I left because, you know, after a period of time when nobody showed up, with them supposed to be in town, you know, we felt like maybe Mrs. Welch had contacted them and warned them that we would be waiting to meet them.
Exhibit "E" to Plaintiffs Response, Deposition of Maury Schuh, p. 16. After waiting for some period of time, the officers left. Eventually, Roy Moreno arrived at Wal-Mart and tried to retrieve the prescription. When he did so, Wal-Mart employees again called for Deputy Schuh. Schuh arrived at Wal-Mart and confronted Mr. Moreno. After a conversation with Mr. Moreno, Schuh escorted Mr. Moreno back to Moreno's vehicle in the parking lot, where Pamela Keith and her small child were waiting. Schuh asked Mr. Moreno and the plaintiff to follow him back to the sheriff's department, and they did so.
After arriving at the sheriff's department, officers placed Mr. Moreno and the plaintiff in separate rooms and questioned them. Defendant Schuh questioned the plaintiff. During this initial questioning, the conversation reached the following point:
A: He got to saying, you didn't have permission to pick up your mother's medicine up. And I said, my mother asked me to pick the medicine up. He said, no, she didn't. And I said, look, let me tell you something, I would not risk going to jail over 12 half of a milligram nerve pills when I've got 90 that's a lot stronger than the ones she's got. He said, oh, you do? He said, well, I'll tell you what I'll do, I'll call the Welfare on you right now and have your kid took away from you. Now, you want me to tell you the exact words I told him?
Q: Go right ahead.
A: I said, you pick up that mother fucking phone up and you call'em. And I jumped out of that chair, and I said, you don't threaten me to call no Welfare on me because I ain't done a damn thing. I said, I had permission to pick that medicine up and if you don't believe me, that's tough. He said, you're going in the cell. I said, put me in there. Because I didn't care. I ain't scared of none of em down there.
Exhibit "B" to Plaintiff's Response, Deposition of Pamela Keith Moreno, p. 44. Following this exchange, Schuh had another officer place the plaintiff in a cell:
A: [Schuh] told'em to lock her up because she won't cooperate with him, because he made her mad about calling the Welfare.
Exhibit "C" to Plaintiff's Response, Deposition of Roy Moreno, p. 17. Schuh indicated in his deposition, however, that he placed her in the cell to prevent her from leaving the sheriff's department. Schuh Dep., p. 39. In any event, the plaintiff remained in the cell for some indeterminate period of time, and while in the cell sat on a cot and smoked cigarettes. The record is unclear as to whether Schuh questioned the plaintiff again after she was detained in a cell, but the parties do not appear to dispute that both the plaintiff and Mr. Moreno were eventually released without being formally arrested or further detained.
Q: Are we looking at an hour, half an hour? A: No. No. I mean not long at all. Schuh Dep., p. 41. The plaintiff has not presented the court with an approximate amount of time that she contends she was detained in the cell, i.e., nothing more precise than "some period of time." However, the defendant Schuh also testified that the total time the that the plaintiff spent at the sheriffs department on this occasion, including time within the cell, totaled about one hour. Schuh Dep., p. 56.
On or about March 17, 1995, Deputy Schuh signed two affidavits and presented them to Lee County Justice Court Judge John H. Sheffield. On the basis of these affidavits, Schuh obtained an arrest warrant for the plaintiff, charging her with 1) felony conspiracy to obtain a controlled substance, and 2) uttering a forgery. The plaintiff turned herself in to authorities that day. The matter ultimately came up for trial on June 27, 1995, whereupon Judge Sheffield dismissed the charges without prejudice.
Discussion
Summary Judgment Standard
Summary judgment shall be granted "if 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 a judgment as a matter of law." Fed.R.Civ.P. 56(c). The burden rests upon the party seeking summary judgment to show the district court that an absence of evidence exists in the non-moving party's case. Celotex Corp. v. Catrett, 477 U.S. 317, 325, 106 S.Ct. 2548, 2553, 91 L.Ed.2d 265 (1986); see Jackson v. Widnall, 99 F.3d 710, 713 (5th Cir. 1996); Hirras v. Nat'l R.R. Passenger Corp., 95 F.3d 396, 399 (5th Cir. 1996). Once such a showing is presented by the moving party, the burden shifts to the non-moving party to demonstrate, by specific facts, that a genuine issue of material fact exists. Anderson v. Liberty Lobby. Inc., 477 U.S. 242, 249, 106 S.Ct. 2505, 2511, 91 L.Ed.2d 202 (1986); Texas Manufactured Housing Ass'n. Inc. v. City of Nederland. 101 F.3d 1095, 1099 (5th Cir. 1996);Brothers v. Klevenhagen, 28 F.3d 452, 455 (5th Cir. 1994). Substantive law will determine what is considered material.Anderson, 477 U.S. at 248; see Nichols v. Loral Vought Sys. Corp., 81 F.3d 38, 40 (5th Cir. 1996). "Only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment. Factual disputes that are irrelevant or unnecessary will not be counted."Anderson, 477 U.S. at 248; see City of Nederland, 101 F.3d at 1099; Gibson v. Rich. 44 F.3d 274, 277 (5th Cir. 1995). Further, "[w]here the record, taken as a whole, could not lead a rational trier of fact to find for the non-moving party, there is no genuine issue for trial." Anderson. 477 U.S. at 248; see City of Nederland. 101 F.3d at 1099. Finally, all facts are considered in favor of the non-moving party, including all reasonable inferences therefrom. See Anderson. 477 U.S. at 254; Banc One Capital Partners Corp. v. Kneipper. 67 F.3d 1187, 1198 (5th Cir. 1995);Taylor v. Gregg. 36 F.3d 453, 455 (5th Cir. 1994); Matagorda County v. Russell Law. 19 F.3d 215, 217 (5th Cir. 1994). However, this is so only when there is "an actual controversy, that is, when both parties have submitted evidence of contradictory facts." Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994); Guillorv v. Domtar Industries Inc., 95 F.3d 1320, 1326 (5th Cir. 1996);Richter v. Merchants Fast Motor Lines. Inc., 83 F.3d 96, 97 (5th Cir. 1996). In the absence of proof, the court does not "assume that the nonmoving party could or would prove the necessary facts."Little. 37 F.3d at 1075 (emphasis omitted); see Lujan v. Nat'l Wildlife Fed'n. 497 U.S. 871, 888, 111 L.Ed. 695, 110 S.Ct. 3177 (1990).
Qualified Immunity of Defendant Schuh
Whenever qualified immunity is asserted as an affirmative defense in a § 1983 action, resolution of the issue should occur at the earliest possible stage. Anderson v. Creighton. 483 U.S. 635, 639, 107 S.Ct. 3034, 97 L.Ed.2d 523 (1987); Elliott v. Perez. 751 F.2d 1472, 1478 (5th Cir. 1985). Issues of qualified immunity are normally determined from the face of the pleadings and without extended resort to pre-trial discovery. Babb v. Dorman. 33 F.3d 472, 477 (5th Cir. 1994). Public officials, including law enforcement officers such as the individual defendant, are entitled to assert the defense of qualified immunity in a § 1983 suit for discretionary acts occurring in the course of their official duties. Harlow v. Fitzgerald. 457 U.S. 800, 806, 102 S.Ct. 2727, 73 L.Ed.2d 396, 403 (1982); Gagne v. City of Galveston. 805 F.2d 558, 559 (5th Cir. 1986); Jacquez v. Procunier. 801 F.2d 789, 791 (5th Cir. 1986). These public officials are shielded from liability for civil damages for those actions as long as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.Davis v. Scherer. 468 U.S. 183, 194, 104 S.Ct. 3012, 3019, 82 L.Ed.2d 139 (1984); Harlow v. Fitzgerald. 457 U.S. 800, 818, 102 S.Ct. 2727, 2738, 73 L.Ed.2d 396 (1982); White v. Walker. 950 F.2d 972, 975 (5th Cir. 1991); Morales v. Havnes. 890 F.2d 708, 710 (5th Cir. 1989). Stated differently, qualified immunity provides "ample protection to all but the plainly incompetent or those who knowingly violate the law." Malley v. Briggs. 475 U.S. 335, 341, 106 S.Ct. 1092, 1096, 89 L.Ed.2d 271 (1986).
The first step in the inquiry of the defendant's claim of qualified immunity is whether the plaintiff has alleged the violation of a clearly established right. Siegert v. Gilley. 500 U.S. 266, 111 S.Ct. 1789, 114 L.Ed.2d 277, 287 (1991). This inquiry necessarily questions whether was confronted. Hunter v. Brvant. 502 U.S. 224, 112 S.Ct. 534, 116 L.Ed.2d 589, 596 (1991); Lampkin v. City of Nacogdoches. 7 F.3d 430 (5th Cir. 1993). "If reasonable public officials could differ on the lawfulness of the defendant's actions, the defendant is entitled to qualified immunity." Blackwell v. Barton. 34 F.3d 298, 303 (5th Cir. 1994) (quoting Pfannstiel v. Marion. 918 F.2d 1178, 1183 (5th Cir. 1990)). Even if defendant Schuh violated the constitutional rights of the plaintiff, he is entitled to immunity if his actions were objectively reasonable.Blackwell. 34 F.2d at 303.
The issue is an "objective (albeit fact-specific) question whether a reasonable officer could have believed" that he was violating the plaintiffs constitutionally protected rights "under the circumstances of the complained of action." Mangieri. 29 F.3d at 1017 (emphasis added) (quoting Pfannstiel. 918 F.2d at 1183); see Hale v. Townley. 45 F.3d 914, 918 (5th Cir. 1995) ("Factual allegations are examined to determine whether they would be sufficient, if proven, to establish a violation of clearly established law.") (emphasis added). In its most basic terms, this court must 1) assume that the official committed the acts of which the plaintiff complains, 2) determine what relevant facts and circumstances surrounded the action, including what facts the official was aware of or should have been aware of when taking the alleged action, and 3) objectively determine as a matter of law whether a reasonable official in the defendant's position would have believed that he was violating clearly established constitutional rights by taking such action. Only the second of these inquiries has the potential to raise genuine issues of material fact, and only the presence of such issues would allow the submission of the immunity question to the finder of fact. Brown v. Brvan County. 67 F.3d 1174, 1181 n. 14 (5th Cir. 1995); Mangieri. 29 F.3d at 101ed immunity cases if [there are] underlying historical facts in dispute that are material to resolutions of the questions whether the defendants acted in an objectively reasonable manner in view of the existing law and facts available to them.") (emphasis added); Auster Oil Gas. Inc. v. Stream. 835 F.2d 597, 601 (5th Cir. 1988) ("Had appellants timely asserted the question of qualified immunity, subsidiary questions of fact might have arisen, such as what information they possessed that might have led a reasonable person to believe that [their action] was lawful.").
False Arrest
First, the court takes up the plaintiff's claim that she was arrested without probable cause. It is axiomatic that the mandates of the Fourth Amendment require an arrest to be supported by probable cause. See United States v. Raborn, 872 F.2d 589. 593 (5th Cir. 1989);United States v. Fortna, 796 F.2d 724, 739 (5th Cir. 1986). This is so whether the arrest is made with or without a warrant. See Raborn, 872 F.2d at 593; Fortna. 796 F.2d at 739. Conversely, "[t]here is no cause of action for false arrest under § 1983 if the arresting officer had probable cause." See Brown v. Bryan County, 67 F.3d 1174, 1180 (5th Cir. 1995); Fields v. City of South Houston. 922 F.2d 1183, 1189 (5th Cir. 1991). "Probable cause is a fluid concept-turning on the assessment of probabilities in particular factual contexts-not readily, or even usefully, reduced to a neat set of legal rules." Illinois v. Gates, 462 U.S. 213, 232, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983);Fields. 922 F.2d at 1189. Probable cause has been determined to exist "when the facts available at the moment of the arrest would warrant a person of reasonable caution in the belief that an offense has been or is being committed and that the individual arrested was the guilty person." Raborn, 872 F.2d at 593 (quoting Beck v. Ohio. 379 U.S. 89, 96, 85 S.Ct. 223, 13 L.Ed.2d 142 (1963));Brown. 67 F.3d at 1180. In making this determination, one must look at the totality of the circumstances. See Brown. 67 F.3d at 1180; United States v. Maslanka, 501 F.2d 208, 212 (5th Cir. 1974). "Whether officers have probable cause depends on whether, at the time of arrest, the `facts and circumstances within their knowledge and of which they had reasonably trustworthy information were sufficient to warrant a prudent man in believing that the arrested had committed or was committing an offense.'" Brown 67 F.3d at 1180 (quoting Beck. 379 U.S. at 91).
In the case at bar, the plaintiff charges that the defendant Schuh violated her Fou Court Judge Sheffield. The qualified immunity inquiry before this court is whether a reasonable officer, knowing what Deputy Schuh knew at the time, would have believed that he had probable cause to arrest the plaintiff for the crime with which she was charged. When considering the facts and circumstances within the officer's knowledge, this court cannot say that Deputy Schuh acted unreasonably in this regard nor that a reasonable officer should have known that his actions violated clearly established Fourth Amendment rights. During the time frame relevant to the plaintiff's claim of false arrest, Deputy Schuh had been informed that:
An accompanying question is whether Deputy Schuh had probable cause to detain Ms. Keith for questioning. It appears that once Ms. Keith was placed in a room at the Lee County Sheriff's Department, she was not free to leave. In that her liberty was so restricted, the Fourth Amendment required Deputy Schuh to have probable cause for the detention.Dunaway v. New York, 442 U.S. 200, 216, 99 S.Ct. 2248, 2258, 60 L.Ed.2d 824 (1979) ("[D]etention for custodial interrogation — regardless of its label — intrudes so severely on interests protected by the Fourth Amendment as necessarily to trigger the traditional safeguards against illegal arrest.").
If the authorities nevertheless propose to detain the traveler for purposes of subjecting him to criminal investigation and possible arrest and punishment, they may do so only pursuant to constitutional safeguards applicable to everyone else in the country. Chief among those safeguards is the requirement that . . . custodial detentions occur only on probable cause.United States v. Sharpe, 473 U.S. 531, 565, 105 S.Ct. 3304, 3323, 473 U.S. 531, 566, 105 S.Ct. 3304, 3324 (1985) (Brennan, J., Dissenting) (citations omitted) (emphasis added).
While the court agrees that there exist factual disputes as to what exactly transpired in the telephone conversations between Ms. Welch and Mr. Yeilding, there does not appear to be any contradictory evidence regarding what Mr. Yeilding told Deputy Schuh regarding those conversations which is sufficient to raise genuine issues of material fact. The distinction is crucial, as the facts within Schuh's knowledge to a large part determine his entitlement to qualified immunity.
1) a person who sounded like a young woman called in a prescription which belonged to a seventy-five year old woman;
2) Gladys Welch, the woman who held the prescription, stated to one of the pharmacists over the telephone that no one had the authority to pick up her prescriptions;
3) representatives at the doctor's office who issued the prescription stated that the prescription was no longer valid and directed the pharmacists to not issue the prescription;
4) representatives at the doctor's office also stated their records reflected that other pharmacies had experienced "problems" with people trying to improperly fill this prescription;
5) Ms. Welch called the pharmacy back and again spoke to Mr Yeilding, and at one point stated that she felt she knew who was attempting to pick up her refill and that she did not want to "get them into trouble;"
6) the plaintiff and Roy Moreno arrived at Wal-Mart, and Mr. Moreno attempted to retrieve Ms. Welch's prescription. When challenged, both Mr. Moreno and the plaintiff stated that they had permission to retrieve the prescription.
While Schuh did have some information that indicated that the plaintiff had in fact committed no crime, e.g., the asseverations by the plaintiff and Mr. Moreno that they had permission to pick up the prescription, this information was contradicted by other information he possessed. Likewise, it might have been preferable for Schuh to obtain first-hand all the information relayed to him by Mr. Yeilding to ensure its accuracy. Nevertheless, there is little before the court that indicates Deputy Schuh should have suspected that Mr. Yeilding's information was incorrect. Additionally, Deputy Schuh had another justifiable reason to disbelieve the statements of the plaintiff and Mr. Moreno under these circumstances, for they had a motivation to be dishonest, i.e., they were under suspicion of committing a crime. This is not to say that law enforcement officials would in every case be justified to disbelieve what a suspect conveys to them, but rather in light of the totality of the circumstances in this case, the undersigned believes that Deputy Schuh was so justified. In light of the nature of the information possessed by the defendant, the undersigned is of the opinion that reasonable law enforcement officials could differ on the lawfulness under the Fourth Amendment of either arresting the plaintiff or detaining her for questioning. As such, defendant Schuh is entitled to the protection of qualified immunity as against the plaintiffs claim that he arrested her without probable cause. There is no genuine issue of material fact with regard to this matter, and the defendant is entitled to the entry of a judgment as a matter of law with regard to this claim.
The defendant would have this court determine that probable cause was conclusively established by Judge Sheffield's issuance of a warrant for the plaintiff's arrest. Defendant's Brief, p. 10. Even if he arrested the plaintiff with a malicious intent, Schuh continues, he is insulated from liability in light of the intervention of the impartial determination of probable cause by Judge Sheffield. It is true that if facts supporting an arrest are placed before an independent intermediary such as a magistrate or grand jury, the intermediary's decision breaks the chain of causation for false arrest, insulating the initiating party from liability. See, e.g., Taylor v. Gregg, 36 F.3d 453, 456 (5th Cir. 1994); Wheeler v. Cosden Oil and Chemical Co., 744 F.2d 1131, 1132 (5th Cir. 1984); Thomas v. Sams, 734 F.2d 185, 191 (5th Cir. 1984), cert. denied, 472 U.S. 1017, 105 S.Ct. 3476, 87 L.Ed.2d 612 (1985). However, "the chain of causation is broken only where all the facts are presented to the [impartial magistrate], where the malicious motive of the law enforcement officials does not lead them to withhold any relevant information . . . from the independent intermediary. Any misdirection of the magistrate or the grand jury by omission or commission perpetuates the taint of the original official behavior." Hand v. Gary, 838 F.2d 1420, 1427-28 (5th Cir. 1988). This court cannot say that there is an absence of genuine issues of material fact regarding the disclosure of information to Judge Sheffield by defendant Schuh. The only evidence before this court is that defendant Schuh presented two rather uninformative form affidavits to Judge Sheffield, and presented no affidavits or other statements from knowledgeable witnesses other than himself. Based upon this evidence alone, this court cannot say as a matter of law that Deputy Schuh made a complete disclosure of information to Judge Sheffield which warrants a conclusive finding of probable cause under the "independent intermediary" doctrine.
Malicious Prosecution
The plaintiff has also stated a claim for malicious prosecution. As such, she has an additional § 1983 claim arising under the Fourth Amendment. See, e.g., Eugene v. Alief Indep. Sch. Dist., 65 F.3d 1299, 1303 (5th Cir. 1995); Sanders v. Fort Bend Co., 932 F. Supp. 894, 897 (S.D. Tex. 1996); Swenson v. Culberson Co., 925 F. Supp. 478, 485 (W.D. Tex. 1996). As the defendant properly notes, however, no such action arises by virtue of the protections of the Fourteenth Amendment. Albright v. Oliver. 510 U.S. 266, 114 S.Ct. 807, 127 L.Ed.2d 114 (1994) (determining malicious prosecution claim not actionable under substantive due process; declining to address actionability under Fourth Amendment).
The defendant also properly points out that an essential element that the plaintiff must establish in order to prevail on her claim of malicious prosecution is the lack of probable cause for that prosecution.Eugene. 65 F.3d at 1305; Pete v. Metcalfe. 8 F.3d 214, 219 (5th Cir. 1993); Brown v. United States. 653 F.2d 196, 198-99 (5th Cir. 1981). This court has already determined that Deputy Schuh is entitled to the protection of qualified immunity with regard to the plaintiff's claim of false arrest, in light of this court's determination that a reasonable law enforcement official with the knowledge of Deputy Schuh at the time could have believed that he had probable cause to arrest or detain the plaintiff. This determination is also fatal to the plaintiff's claim of malicious prosecution. For purposes of qualified immunity, the same question must be asked — would a reasonable officer, knowing what Deputy Schuh knew at the time, have believed that he had probable cause to arrest the plaintiff for the crime with which she was charged? If so, then that officer could not have known that the action of arresting the plaintiff would have violated her right to be free from malicious prosecution since the lack of probable cause is an essential element to that type of claim. Deputy Schuh is entitled to the protection of qualified immunity as against this claim as well. There is no genuine issue of material fact with regard to this matter, and the defendant is entitled to the entry of a judgment as a matter of law with regard to the plaintiff's claim of malicious prosecution.
3. First Amendment
The plaintiff also charges the defendant with a violation of her First Amendment right of free expression. In particular, she charges that Deputy Schuh incarcerated her for a short period of time in retaliation to her commentary to him. For purposes of a determination of qualified immunity, this court must presume that Deputy Schuh did in fact commit the complained-of action, i.e., that he had the plaintiff placed in a jail cell in retaliation for her speech. With that in mind, the court turns to whether qualified immunity protects officer Schuh from this allegation of the plaintiff.
a. Has the plaintiff alleged the violation of a constitutional right at all?
The plaintiff has indeed alleged the violation of a constitutional right. Citizens have long been empowered to criticize the police and police action. See, e.g., Houston v. Hill. 482 U.S. 451, 461, 107 S.Ct. 2502, 2509, 96 L.Ed.2d 398 (1987) ("[T]he First Amendment protects a significant amount of verbal criticism and challenge directed at police officers."); Norwell v. Cincinnati. 414 U.S. 14, 94 S.Ct. 187, 38 L.Ed.2d 170 (1973) (per curiam) (reversing conviction for disorderly conduct where defendant was "loud and boisterous," stating a person "is not to be punished for nonprovocatively voicing his objection to what he obviously felt was a highly questionable detention by a police officer").
"[A]bove all else, the First Amendment means that government has no power to restrict expression because of its message, its ideas, its subject matter, or its content. . . . To permit the continued building of our politics and culture, and to assure self-fulfillment for each individual, our people are guaranteed the right to express any thought, free from government censorship. "Police Department of the City of Chicago v. Mosley, 408 U.S. 92, 95-96, 92 S.Ct. 2286, 2289-90, 33 L.Ed.2d 212, 216-17 (1972) (citations omitted).
[C]onduct involving only verbal challenge of an officer's authority or criticism of his actions . . . operates, of course, to impair the working efficiency of government agents. . . . Yet the countervailing danger that would lie in the stifling of all individual power to resist — the danger of an omnipotent, unquestionable officialdom — demands some sacrifice of efficiency . . . to the forces of private opposition. . . . [T]he strongest case for allowing challenge is simply the imponderable risk of abuse — to what extent realized it would never be possible to ascertain — that lies in the state in which no challenge is allowed.Obstructing A Public Officer, 108 U.PA.L.REV. 388, 390-392, 406-407 (1960). It is likewise clear that public officials are not permitted to retaliate against citizens who choose to exercise their constitutional rights. The elements of such a claim of retaliation are:
) the plaintiff's invocation of "a specific constitutional right;"
) the defendant's intent to retaliate against the plaintiff for his or her exercise of that right,
) a retaliatory adverse act; and
) causation, i.e., "but for the retaliatory motive the complained of incident . . . would not have occurred."Johnson v. Rodriguez, 110 F.3d 299, 310 (5th Cir. 1997); Woods v. Smith. 60 F.3d 1161. 1166 (5th Cir. 1995) (citations omitted), cert. denied. — U.S. —, 116 S.Ct. 800, 133 L.Ed.2d 747 (1996). An action taken by a state official motivated by retaliation for the exercise of a constitutionally protected right is actionable, even if the act might have been legitimate if taken for a different reason. Woods. 60 F.3d at 1165.
Defendant Schuh would have this court determine that the existence of probable cause for Ms. Keith's detention insulates any constitutional claim against him arising out of the incidents in question in this lawsuit. Such an argument is not novel. For example, the Second Circuit has determined that a citizen has no actionable claim for arrest or prosecution by police officers in retaliation for the exercise of First Amendment rights where probable cause also supports the officer's action. See, e.g., Singer v. Fulton County Sheriff, 63 F.3d 110, 120 (2nd Cir. 1995); Mozzochi v. Borden, 959 F.2d 1174, 1179-80 (2d Cir. 1992). This remains so even if the officer maliciously acts against the citizen with the express intent of violating First Amendment protections:
We have held previously that if the officer either had probable cause or was qualifiedly immune from subsequent suit (due to an objectively reasonable belief that he had probable cause), then we will not examine the officer's underlying motive in arresting and charging the plaintiff.Singer. 63 F.3d at 120 (dismissing First Amendment retaliation claim).
This court, however, finds the argument without merit. The existence of probable cause most certainly protects law enforcement officials from certain claims which rest their anchor on the Fourth Amendments prohibition against "unreasonable" search and seizure. It does not follow, however, that because an officer is not in violation of one constitutional provision, he is entitled to protection for the violation of other constitutionally protected rights. In the words of another court, "this does not mean that probable cause forecloses every possible challenge to an arrest." Holland v. Portland. 102 F.3d 6, 10 (1st Cir. 1996). In each relevant case within the Fifth Circuit, the preclusive nature of probable cause only protected the defendant from certain claims arising under the Fourth Amendment. See, e.g., Brown v. Edwards. 721 F.2d 1442, 1453 (5th Cir. 1984) (false arrest claim); Hunter v. Clardy. 558 F.2d 290, 291 (5th Cir. 1977) (false arrest claim); Thomas v. Fredrick. 766 F. Supp. 540, 557 (W.D. La. 1991) (false arrest and malicious prosecution). Even in the cases from other circuits relied upon by defendant Schuh with regard to the plaintiff's First Amendment claim, the only claims found precluded are those which arose under the Fourth Amendment. Rowland v. Perry. 41 F.3d 167, (4th Cir. 1994) (excessive force claim);Mark v. Furay. 769 F.2d 1266, 1268 (7th Cir. 1985) ("This court has consistently held that the existence of probable cause for an arrest totally precludes any section 1983 claim for unlawful arrest, false imprisonment, or malicious prosecution, regardless of whether the defendants had malicious motives for arresting the plaintiff."). To the knowledge of the undersigned, the Second Circuit's decisions in this regard are an anomaly as the only decisions to the contrary.
Further, this protection does not extend to extinguish every claim arising under the Fourth Amendment. For example, a police officer garners no protection from claims of the use of excessive force by the mere fact that he did indeed have probable cause to effectuate an arrest. See Harper v. Harris County. 21 F.3d 597, 601 (5th Cir. 1994) (discussing existence of probable cause in false arrest claim but not in excessive force claim);Fields v. South Houston. 922 F.2d 1183, (5th Cir. 1991) (dismissing false arrest claim based upon existence of probable cause but permitting excessive force claim to go to trial). Again, however, the existence of probable cause is relevant to the claim, for probable cause is required in order for an police officer to exert reasonable force against a citizen. United States v. Sanchez, 74 F.3d 562, 566 (5th Cir. 1996). The most basic justification for awarding immunity in these Fourth Amendment cases is that the officer's reasonable belief that probable cause exists equates to a reasonable belief that no constitutional violation has occurred, i.e., where the "lack of probable cause" is an element of the constitutional claim. See, e.g., Brown v. Bryan County, 67 F.3d 1174, 1180 (5th Cir. 1995) ("There is no cause of action for false arrest under § 1983 unless the arresting officer lacked probable cause."); Thomas v. Kippermann, 846 F.2d 1009, 1011 (5th Cir. 1988) ("Claims of false arrest, false imprisonment, and malicious prosecution involve the guarantees of the fourth and fourteenth amendments when the individual complains of an arrest, detention, and prosecution without probable cause."). In such cases, the officer reasonably believes that he is not violating that particular Fourth Amendment right because he reasonably believes that an essential element of the constitutional claim is absent.
The undersigned also finds notable that the United States Supreme Court, in finding that probable cause precludes actions arising under the Fourth Amendment, alluded to the limitation of this preclusion to these claims arising under the Fourth Amendment and not to other claims:
We of course agree with petitioners that the Constitution prohibits selective enforcement of the law based on considerations such as race. But the constitutional basis for objecting to intentionally discriminatory application of laws is the Equal Protection Clause, not the Fourth Amendment. Subjective intentions play no role in ordinary, probable-cause Fourth Amendment analysis.Whren v. United States. 517 U.S. —, —, 116 S.Ct. 1769, 1774, 135 L.Ed.2d 89 (1996) (emphasis added). Indeed, the existence of probable cause, while relevant, does not preclude recovery for selective prosecution:
In the ordinary case, "so long as the prosecutor has probable cause to believe that the accused committed an offense defined by statute, the decision whether or not to prosecute, and what charge to file or bring before a grand jury, generally rests entirely in his discretion." Of course, a prosecutor's discretion is "subject to constitutional constraints."United States v. Armstrong. — U.S. —, 116 S.Ct. 1480, 1486-88, 134 L.Ed.2d 687 (1996).
In order to establish that he was unfairly prosecuted, [the plaintiff] must establish that he was singled out for prosecution while others similarly situated were not, and that the action against him was motivated by an arbitrary or unjustifiable consideration, such as race, religion, or the desire to prevent the exercise of a constitutionally-protected right, such as freedom of speech.Amato v. S.E.C., 18 F.3d 1281, 1284 (5th Cir. 1994) (emphasis added): see also Home Depot. Inc. v. Guste, 773 F.2d 616, 626 (5th Cir. 1985) (quoting United States v. Greene, 697 F.2d 1229, 1234 (5th Cir.), cert. denied, 463 U.S. 1210, 103 S.Ct. 3542, 77 L.Ed.2d 1391 (1983)).
If the existence of probable cause does not prevent a plaintiff from pursuing a selective prosecution claim based upon race and empowered by the equal protection clause, the court fails to see why a retaliation claim based upon the exercise of First Amendment rights would not also lie. Just as the prosecutor's decision to prosecute is subject to constitutional restraints such as the equal protection clause, regardless of the existence of probable cause, the law enforcement official is likewise constrained. When considering this argument in the light of other equivalently-protected constitutional rights, the error in adopting such a blanket protection becomes even more apparent. Neither the Eighth Amendment prohibition against cruel and unusual punishment, rights arising under substantive and procedural due process, nor the Sixth Amendment right to counsel lose their import when an arrest supported by probable cause is made. The court finds no justification for extending the protection of qualified immunity for reasons which have no relation to the inquiry of whether a reasonable law enforcement officer would have believed that he was violating the particular constitutional right in question. Ms. Keith had a right to be free from police retaliation in response to the exercise of her First Amendment right of freedom of expression, regardless of the existence of probable cause for her detention or arrest.
b. Was this right clearly established?
That this court does not embrace defendant Schuh's interpretation of the law in this regard does not necessarily mean that a reasonable officer in defendant Schuh's position should have known that the alleged retaliation was violative of Ms. Keith's First Amendment rights. As reflected by the court's discussion on the issues, there is no Fifth Circuit case directly on point which states that the existence of probable cause does not prevent liability from attaching to officers who allegedly violate First Amendment rights. When determining whether a right was clearly established, however, this court need not find such a case which predates the alleged conduct. Rather, it is sufficient that the unlawfulness of the alleged action is "apparent" in light of pre-existing law. Blankenship v. Johnson. 106 F.3d 1202, 1206 (5th Cir. 1997); Hassan v. Lubbock Indep. Sch. Dist., 55 F.3d 1075, 1079 (5th Cir. 1995); Hale v. Towney, 45 F.3d 914, 919 (5th Cir. 1995). Indeed, the fact that there is no case directly on point may be indicative of the degree to which that point of law is ingrained into constitutional jurisprudence. United States v. Lanier. — U.S. —, 117 S.Ct. 1219, 1227, 137 L.Ed.2d 432 (1997) ("[t]he easiest cases don't even arise. There has never been . . . a section 1983 case accusing welfare officials of selling foster children into slavery; it does not follow that if such a case arose, the officials would be immune from damages [or criminal] liability.") (quotingUnited States v. Lanier, 73 F.3d 1380, 1410 (7th Cir. 1996) (Daughtrey, C.J., dissenting)); see also MARTIN A. SCHWARTZ AND JOHN E. KIRKLIN, Section 1983 Litigation: Claims and Defenses, Vol. 1B, p. 338 (1996) ("Sometimes the absence of precedent on point reflects only that what the defendant did was blatantly unconstitutional and that there has been widespread compliance with the governing constitutional norm.").
Throughout his submissions to this court, Schuh argues that he did not place Ms. Keith in a detention cell in retaliation for her exercise of First Amendment freedoms. Defendant's Rebuttal Brief, p. 16 ("It is clear from the evidence that Ms. Keith was not detained because of her statements."). As this court has already noted, that fact must be assumed by the undersigned in determining whether Deputy Schuh is entitled to the protection of qualified immunity. Lampkin v. City of Nacogdoches, 7 F.3d 430, 435 (5th Cir. 1993) ("Rule 56 still has vitality in qualified immunity cases if [there are] underlying historical facts in dispute that are material to resolutions of the questions whether the defendants acted in an objectively reasonable manner in view of the existing law and facts available to them.") (emphasis added); Auster Oil Gas. Inc. v. Stream, 835 F.2d 597, 601 (5th Cir. 1988) ("Had appellants timely asserted the question of qualified immunity, subsidiary questions of fact might have arisen, such as what information they possessed that might have led a reasonable person to believe that [their action] was lawful.") (emphasis added). Simply arguing that Schuh "didn't do it" does not affect the qualified immunity analysis. Bonitz v. Fair. 804 F.2d 164, 174 (1st Cir. 1986) ("[The defendant's] claim that he did not in fact cause the alleged wrong is not an argument that he is entitled to immunity, but rather is an argument that he is not liable.").
"Put another way, officials must observe `general, well-developed legal principles.'" Hale. 45 F.3d at 919 (quoting Doe v. Taylor Indep. Sch. Dist., 15 F.3d 443, 455 (5th Cir. 1994)). Further, this court must look to the "well established" law of this circuit, and reliance upon the law of other circuits does not give a public official solace. Boddie v. City of Columbus. 989 F.2d 745, 748 (5th Cir. 1993) ("Our inquiry [into what is clearly established law] ends, if we find from examining the decisions of the Supreme Court and our own decisions that the law was clearly established in this circuit.").
The Fifth Circuit has, however, noted the apparent illogical nature of such a seemingly myopic perspective:
While it seems peculiar to consider an official action held lawful by one federal circuit court to be "clearly" unconstitutional by any "objective" criteria, such a result reinforces the finality of circuit law, albeit at the expense of immunity in some cases.Brady v. Fort Bend County. 58 F.3d 173, 175 n. 11 (5th Cir. 1995).
In light of the previous discussion of the court regarding both United States Supreme Court decisions and those within the Fifth Circuit, the undersigned is of the opinion that the right of the plaintiff to be free from malicious retaliation by public officials such as the defendant for the exercise of First Amendment freedoms was "clearly established" during the relevant time period in question. The court finds that this law was "clearly established" even if the official in question had available a legitimate alternative justification, e.g., probable cause, for taking the action. The key here is the official's intent. If in fact the official harbored no constitutionally impermissible intent, then he is not liable on the merits of the claim. What was clear he could not do, however, was to selectively choose on the basis of First Amendment expression to exercise his otherwise legitimate prerogatives to punish persons for their speech.
Were Defendant Schuh's actions objectively reasonable?
In order to determine whether Deputy Schuh's purported actions were objectively reasonable under the circumstances, it is axiomatic that this court must know what the circumstances were. Subsumed within this inquiry is a determination of what knowledge Deputy Schuh possessed at the time of the incident. When looking to the facts of this case, the court notes several questions of fact which impact directly upon both the merits of the plaintiff's First Amendment claim as well as the defendant's entitlement to qualified immunity to that claim.
With regard to the immunity question on the plaintiff's First Amendment claim, the court finds genuine issues of material fact as to the first element of her claim. That is, this court finds genuine issues of material fact exist as to precisely what Ms. Keith said to Deputy Schuh and more importantly, the manner in which she conveyed the speech. These questions of fact are important in the immunity analysis, not because of their potential effect upon whether Deputy Schuh retaliated against her for her speech, but rather whether Ms. Keith engaged in protected speech at all. Words "which by their very utterance inflict injury or tend to incite an immediate breach of the peace" are not constitutionally protected under the First Amendment. See, e.g., R.A.V. v. City of St. Paul. 505 U.S. 377, 386, 112 S.Ct. 2538, 2544, 120 L.Ed.2d 305 (1992); Gooding v. Wilson. 405 U.S. 518, 523, 92 S.Ct. 1103, 31 L.Ed.2d 408 (1972); Chaplinsky v. New Hampshire. 315 U.S. 568, 62 S.Ct. 766, 86 L.Ed. 1031 (1942). In making the determination of whether the words used were unprotected in this context, the physical manner in which Ms. Keith made the statements is just as important as the words themselves:
A: I said, you pick up that mother fucking phone up and you call'em. And I jumped out of that chair, and I said, you don't threaten me to call no Welfare on me because I ain't done a damn thing. I said, I had permission to pick that medicine up and if you don't believe me, that's tough. He said, you're going in the cell. I said, put me in there. Because I didn't care. I ain't scared of none of em down there.
Exhibit "B" to Plaintiff's Response, Deposition of Pamela Keith Moreno, p. 44. This court has not been informed of the physical aspects regarding how this statement was made other than the plaintiff's statement that she "jumped out of that chair" when making the statement. The proximity of the plaintiff to the defendant at the time the statement was made, the plaintiff's demeanor at the time she spoke, and other aspects regarding the manner in which the plaintiff spoke are all relevant to whether a reasonable officer would have believed that the plaintiff was engaging in protected speech or was using unprotected "fighting words." Further, while profanity itself is not necessarily unprotected speech, its presence in speech can be probative to whether the speech would "incite the average person to retaliate."
If a reasonable officer with defendant Schuh's knowledge would have believed that Ms. Keith used "fighting words" toward him, thus creating the possibility of a physical confrontation, then Schuh is entitled to the protection of qualified immunity against her First Amendment claim. Genuine issues of material fact remain in this case as to this issue, and the court finds that the existence of these issues precludes this court from a definitive determination of the defendant's entitlement to qualified immunity. As to this aspect of the defendant's motion for summary judgment, the court shall deny the motion.
Conclusion
After careful consideration of the submissions of the parties and the applicable law, the court is of the opinion that the motion of the defendant for the entry of summary judgment on his behalf should be granted in part and denied in part. The court shall grant the motion insofar as the defendant requests the protection of qualified immunity against the plaintiff's Fourth Amendment claims of malicious prosecution and false arrest. However, the court shall deny the motion insofar as the plaintiff seeks recovery for retaliation for the exercise of her First Amendment free speech rights.
A separate order in accordance with this opinion shall issue this day.
ORDER GRANTING IN PART AND DENYING IN PART DEFENDANT'S MOTION FOR SUMMARY JUDGMENT
Pursuant to a memorandum opinion issued this day, it is hereby ORDERED THAT:
) the motion of the defendant for the entry of summary judgment on his behalf is hereby GRANTED insofar as that motion pertains to the plaintiff's Fourth Amendment claims of malicious prosecution and false arrest;
) the motion of the defendant for the entry of summary judgment on his behalf is hereby DENIED as to the plaintiff's claim of retaliation for the exercise of free speech rights under the First Amendment;
) the plaintiff's Fourth Amendment claims of malicious prosecution and false arrest are hereby DISMISSED.
SO ORDERED.