Opinion
Civil Action No. 3:98-CV-2870-L.
September 22, 2000.
MEMORANDUM OPINION AND ORDER
Before the court are Defendants' Motion for Summary Judgment, filed June 5, 2000; Plaintiff's Response to Defendants' Motion for Summary Judgment, filed July 5, 2000; and Defendants' Reply to Plaintiff's Response to Defendants' Motion for Summary Judgment, filed July 14, 2000. The court, after considering the motion, briefs, response, reply, summary judgment record, and applicable law, grants Defendants' Motion for Summary Judgment.
I. Procedural and Factual Background
Plaintiff Wayne Perry ("Perry" or "Plaintiff") filed this civil rights action on December 8, 1998, pursuant to 42 U.S.C. § 1983. Perry, who is proceeding in this litigation pro se, asserts 23 claims or "counts" against Defendants Kaufman County and Kaufman County Sheriff Robert Harris (hereafter referred to collectively as "Defendants"). Although Plaintiff has only sued Kaufman County and Sheriff Harris, his claims arise from the alleged actions of a number of persons, including deputy sheriffs, neighbors, surveyors, DPS officers, unidentified burglars, and employees of the local tax office, all of whom he contends have in some way wronged him in various ways dating back to 1994. See Plaintiff's Sixth Amended Complaint.
By motion filed on March 24, 2000, Plaintiff sought to amend his complaint for the seventh time. The court denied the motion to amend by an order issued earlier today. Accordingly, Plaintiff's Sixth Amended Complaint is the live pleading on which the court relies in ruling on Defendant's Motion for Summary Judgment.
Plaintiff asserts the following claims against Defendants: (1) action in trespass; (2) attempted burglary of home; (3) burglary of building; (4) assault/attempted murder; (5) action in fraud and false misrepresentation; (6) aiding and abetting; (7) loss of right to keep and bear arms; (8) illegal searches; (9) invasion of privacy; (10) violation of federal and state constitutional civil rights; (11) policy makers' failure to make policy; (12) intentional infliction of emotional distress; (13) false imprisonment; (14) gross negligence; (15) replevin; (16) ultrahazardous activities; (17) fraud and misrepresentation; (18) trespass and intentional infliction of mental suffering; (19) trespass and intentional infliction of mental suffering; (20) specific performance; (21) specific performance and deprivation of rights and enjoyment of property; (22) violation of the Freedom of Information Act and the Texas Open Records Act; and (23) civil and criminal conspiracy. Defendants have filed a motion for summary judgment in this action, contending that the vast majority of Plaintiff's claims is barred by the applicable statute of limitations, governmental immunity and the Texas Tort Claims Act. Defendants also contend that all of Plaintiff's claims fail on the merits, even if these defenses are insufficient to defeat summary judgment.
Plaintiff's Sixth Amended Complaint (hereafter referred to as the "Complaint"), filed May 10, 1999, contains myriad allegations and causes of action which include incidents from the fall of 1994 to the spring of 1999. The recitation of facts is stated and viewed in the light most favorable to Perry as the nonmovant. The court, however, does not consider a fact to be in dispute by a conclusory or speculative statement that it is disputed. Competent summary judgment evidence must show that the fact is disputed. Finally, the court only cites and relies on the facts which are relevant and material to deciding the summary judgment motion. The court now sets forth the facts it relies on to decide Defendants' Motion for Summary Judgment.
The court does not at this juncture recite any facts pertaining to Plaintiff's allegations that he was injured as a result of a policy or custom of Kaufman County. Facts relevant to the policy or custom allegations are set forth in Section III (F) of this opinion.
On or about October 16, 1994, Perry noticed that a "pachinko game," a Japanese pinball game, was missing from his house. A few days later, Perry also noticed a gun and a cash register missing as well. He did not call the police at that time. On October 29, 1994, when Perry's home was burglarized again, he called the Kaufman County Sheriff's Department. Deputy Billy Frosch ("Deputy Frosch") responded to the call, investigated the incident, and prepared a report, which included photographs of the entry and exit points of the burglars, as well as a list of the stolen property. On November 28, 1994, Perry went to the Law Enforcement Center in Kaufman and met with Sgt. Ashcroft, who prepared a supplemental report. The report clarified some previously reported stolen items and added a few additional items.
On January 10, 1995, at approximately 10:00 p.m., Perry heard his German shepherd barking and went outside to investigate. When he went outside, Perry was carrying a cordless phone, a gun, and a flashlight. When Perry walked towards his barn and saw two lights moving around inside the building, he dialed 911 on the cordless phone and told the dispatcher he had some prowlers in his barn. Plaintiff then walked down his driveway to the public road where he waited for a moment to flag down the police, turned around, and went up the driveway towards the barn again. When Perry approached the barn, he yelled "Police!" and "Policia!" Plaintiff thought the persons in the barn might have been some Spanish-speaking workers who had been employed by a neighbor. Perry then walked around behind the barn and encountered an individual dressed in black gear who said, "Freeze, mother _____," and fired a shot. Plaintiff fired a shot in return and ran towards the front of the barn. The person fired several additional shots at Plaintiff as he ran. Plaintiff got behind a tree and fired several shots at the individual, who returned fire towards Plaintiff.
Perry returned to his house and called the police again. He then went back up the road and met with the arriving law enforcement officials: a Kaufman County deputy, an officer from the Texas Department of Public Safety (DPS), and several officers from the City of Kaufman. The deputy was Deputy Dan Sharp ("Deputy Sharp"). Deputy Sharp and the officers from the City police went to the barn while Plaintiff stayed with the DPS officer and showed him his gun and how many shots he had fired. Plaintiff offered to go inside his house and get a key for the barn, at which time he left his gun on top of a car and heard Deputy Sharp say that he would "secure the gun." When he returned with the key, he and Deputy Sharp searched the barn.
Plaintiff and Deputy Sharp returned to the road at which time Sheriff Harris arrived at the scene in a Kaufman County Sheriff's Department car. The sheriff asked Plaintiff whether he would mind signing a consent to search. Plaintiff told the sheriff he could "search all you want to." Plaintiff executed the consent form the sheriff provided and understood that he was consenting to a search of the cars, structures, house, barn, and everything on the specified premises.
While Plaintiff was sitting in the sheriff's car, Sheriff Harris told him that the two individuals who had been in the barn were undercover deputies. Before the search was commenced, the two deputies, Greg Parks and Mike Knapp, drove up and approached the assembled group. The sheriff identified these two deputies, and Deputy Parks shook Plaintiff's hand.
At that time, the three deputies and the sheriff searched the property. During that time, Plaintiff stayed with the DPS officer and made small talk about guns and where the officer went to college. When the search was completed, Deputy Sharp asked Plaintiff to assist him in the preparation of a report and a statement from Plaintiff. Plaintiff was not prosecuted or jailed because of the sheriff's search. Plaintiff was not hurt during the search.
Once the officers departed, Plaintiff reflected on what had happened and immediately believed that the two deputies ought to be checked out and subjected to a lie detector test. Plaintiff was shocked and embarrassed by the incident. He has not sought any medical or psychological counseling of any kind as a result of the incident. In the ensuing months, Plaintiff visited the sheriff twice. On those occasions, the sheriff discussed the events of January 10, 1995, with Plaintiff and introduced him again to Deputy Knapp. Sheriff Harris offered Plaintiff the reports of Deputy Parks and Deputy Knapp; however, after the officers looked for the reports for almost an hour, they could not find them. Plaintiff acknowledges to this day that the reports have not been located. The sheriff and his staff have searched their files for these reports, but they no longer exist.
In January 1997, Plaintiff's problems with his neighbors, the Tallants, began to erupt. Plaintiff and the Tallants dispute the ownership of two parcels of land: a sixty-one acre tract and a two-acre tract. Both Plaintiff and the Tallants appear to have paper title to these tracts of property. The property dispute between the neighbors has become rather heated in that both have called the Sheriff's Department regarding the dispute. Plaintiff has pulled up fences and has accused the Tallants of trespassing. The sheriff, however, has refused to get involved in a civil dispute between these neighbors. Nobody has been arrested in conjunction with the disputes, and the sheriff and other deputies dispatched to the area have told the parties that the dispute is a civil matter. Plaintiff has filed a lawsuit against the Tallants in state court regarding this land dispute.
On August 20, 1997, another neighbor of Plaintiff, Sharon Allen ("Allen"), called the Sheriff's Department and complained about dogs fighting and making loud noise. Plaintiff acknowledged that his dogs "bark real good," "bark like crazy when they need to," and are kept outside. Deputy Flowers went to Plaintiff's residence to check on Plaintiff's animals. Deputy Flowers drove onto Plaintiff's driveway and asked Plaintiff whether he was feeding and caring for his dogs. Deputy Flowers also inquired about Plaintiff's well being. Deputy Flowers prepared an Incident Report, reflecting that he spoke to Plaintiff and that Plaintiff advised him that his dogs were fine and had food and water. This event made Plaintiff "nervous" and "scared."
On October 14, 1997, the Sheriff's Department received another call from Allen complaining about Plaintiff's dogs. Deputy Jerry Wood ("Deputy Wood") was dispatched to Allen's residence, at which time Allen advised him that she thought Plaintiff's dogs were being abused. Deputy Wood then drove to Plaintiff's residence and inquired about Plaintiff's dogs. Plaintiff and Deputy Wood looked at the dogs and determined they were not fighting or being mistreated. Deputy Wood then left and later prepared an Incident Report, reflecting that he spoke with Plaintiff and that the dogs were being given good care. As a result of this incident, Plaintiff lost sleep and experienced nervousness.
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 Company, 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 Elec. Indus. Co. v. Zenith Radio, 475 U.S. 574, 587 (1986); Ragas, 136 F.3d at 458.
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.
III. Analysis A. Federal Statute of Limitations for Actions under 42 U.S.C. § 1983
In civil rights actions brought under 42 U.S.C. § 1983, federal courts are to adopt the forum state's general personal injury statute of limitation. Owens v. Okure, 488 U.S. 235, 249-50 (1989). In Texas, the relevant limitations period is two years from the date the cause of action accrues. Tex. Civ. Prac. Rem. Code, Ann. § 16.003(a); Jackson v. Johnson, 950 F.2d 263, 265 (5th Cir. 1992). The period of limitations begins to run when a plaintiff becomes aware that he has suffered an injury or has adequate information to know that he has been harmed. Russell v. Board of Trustees, 968 F.2d 489, 493 (5th Cir. 1992). A plaintiff's awareness consists of two components: (1) the existence of the injury; and (2) causation, meaning a connection between the injury and a defendant's conduct. See Stewart v. Parish of Jefferson, 951 F.2d 681, 684 (5th Cir.), cert. denied, 506 U.S. 820 (1982). A plaintiff, however, need not have actual knowledge of the injury if the circumstances would lead a reasonable person to investigate further. See Jensen v. Snellings, 841 F.2d 600, 606 (5th Cir. 1988).
B. State Statute of Limitations for State Claims
Most tort actions are governed by the two-year statute of limitations found in Tex. Civ. Prac. Rem. Code Ann. § 16.003 (Vernon Supp. 2000). Claims for (1) trespass for injury to the estate or the property of another; (2) conversion of personal property; (3) taking or detaining the personal property of another; (4) personal injury; (5) forcible entry and detainer; and (6) forcible detainer must be brought "not later than two years after the day the cause of action accrues." Id. at 16.003(a). A tort not covered by a specific limitation provision or not expressly held to be governed by a different provision is presumptively a "trespass" for limitations purposes. See Williams v. Khalaf, 802 S.W.2d 651, 654 (Tex. 1990). "Accrual" is a substantive law concept that is used to determine when the limitations period commences. See Willis v. Maverick, 760 S.W.2d 642, 644 (Tex. 1988). A cause of action generally accrues, and the relevant statute of limitations begins to run, when facts come into existence that authorize a claimant to seek a judicial remedy. Johnson Higgins of Texas, Inc. v. Kenneco Energy, Inc., 962 S.W.2d 507, 514 (Tex. 1998); Murray v. San Jacinto Agency, Inc. 800 S.W.2d 826, 828 (Tex. 1990); see also Moreno v. Sterling Drugs, Inc., 787 S.W.2d 348, 351 (Tex. 1990). For the most part, a cause of action accrues when a wrongful act causes an injury. Moreno v. Sterling Drug, Inc., 787 S.W.2d at 351. Failure to bring a cause of action within the prescribed limitation period bars that action. See Woods v. William M. Mercer, Inc., 769 S.W.2d 515, 517-18 (Tex. 1988).
C. Plaintiff's Federal and State Claims which are Barred by the Statute of Limitations
The applicable statute of limitations on the federal and state claims is two years. As previously stated, Plaintiff filed this action on December 8, 1998. Since the statute of limitations for purposes of this case is two years after the injury occurred with respect to the federal and state claims, Plaintiff Perry is barred from bringing any action based on facts or incidents which occurred prior to December 6, 1996, and of which Plaintiff was aware or could have become aware had he exercised reasonable diligence. According to Plaintiff's Complaint and the summary judgment record, the facts giving rise to the following seventeen claims (as numbered in Plaintiff's Complaint) occurred between the fall of 1994 and January 10, 1995:
(1) Action in Trespass
(2) Attempted Burglary of Home
(3) Burglary of Building
(4) Assault/Attempted Murder
(6) Aiding and Abetting
(7) Loss of Right to Keep and Bear Arms
(8) Illegal Searches
(9) Invasion of Privacy
(10) Defendants' Violation of Federal and State Constitutional Rights
(11) Policy Makers' Failure to Make Policy
(12) Intentional Infliction of Emotional Distress
(13) False Imprisonment
(14) Gross Negligence
(15) Replevin
(16) Ultrahazardous Activities
(20) Specific Performance
(23) Civil and Criminal Conspiracy
To be timely, Plaintiff was required to file suit regarding these claims no later than January 10, 1997, Perry, however, did not file suit until approximately 23 months after the statute of limitations had run. Since Plaintiff did not file suit within two years of the time these seventeen claims accrued, he is barred from bringing such claims.
Plaintiff contends that the statute of limitations should be tolled because (1) he had a trusting relationship with Sheriff Harris; (2) Defendants have concealed certain information (the report of Deputies Park and Knapp and the 911 tape of the call to the Kaufman County Sheriff Department regarding the January 1995 incident); (3) he was "under duress and undue influence" as a result of what appeared to be an angry reaction by Sheriff Harris when he (Plaintiff) inquired about the shootout at his home on January 10, 1995; (4) Defendants conduct constitutes a "continuous wrong"; (5) Defendants have engaged in a conspiracy, and the statute does not run until the last overt act is done in furtherance of the conspiracy; and (6) a cause of action based on fraud accrues only when the fraud is discovered or could have been discovered by the exercise of reasonable diligence. The court has reviewed each of the reasons urged by Plaintiff and is unpersuaded that the facts and relevant authority support any delay of the commencement of the running of the statute of limitations for any of the reasons advanced by Plaintiff. The summary judgment evidence necessarily establishes that Plaintiff was aware in January 1995 of the conduct that caused his alleged injury. His decision to wait until December 8, 1998, to file this action lacks any reasonable explanation. Accordingly, there is no genuine issue of material fact regarding the time these claims accrued or when the statute of limitations had run, and Defendants are entitled to judgment as a matter of law regarding these seventeen listed claims or "counts" asserted by Plaintiff.
D. Sovereign Immunity and the Texas Tort Claims Act
Local governments are immune from suit except to the extent waived by the Texas Tort Claims Act, Tex. Civ. Prac. Rem. Code § 101.021 (Vernon 1997). See City of Lancaster v. Chambers, 883 S.W.2d 650, 658 (Tex. 1994); see also Morris v. Copeland, 944 S.W.2d 696, 699 (Tex.App. — Corpus Christi 1997, no writ). A local government is immune from any claim "arising out of assault, battery, false imprisonment, or any other intentional tort. . . ." Tex. Civ. Prac. Rem. Code, § 101.057(2) (Vernon 1997); see also City of Hempstead v. Kmiec, 902 S.W.2d 118, 122 (Tex.App.-Houston [1st Dist.] 1995, no writ). If a local governmental entity is entitled to governmental or sovereign immunity, the employee sued in his official capacity is also entitled to such immunity because an "official capacity" lawsuit is simply another way of pleading a lawsuit against the local governmental entity of which the official is an agent. City of Hempstead v. Kmiec, 902 S.W.2d at 122; Morris v. Copeland, 944 S.W.2d at 698. Although not a model of pellucid draftsmanship, Plaintiff's Complaint makes clear that he sued Sheriff Harris in his official capacity. See Plaintiff's Sixth Amendment Complaint, ¶ 205. Since Kaufman County is immune from liability for intentional torts, Sheriff Harris is also immune from liability for any intentional state torts. The court has reviewed applicable authority regarding the elements necessary to prevail on each of the following claims, and all require the element of intent: (1) action in trespass; (4) assault/attempted murder; (5) action in fraud and false misrepresentation; (9) invasion of privacy; (12) intentional infliction of emotional distress; (13) false imprisonment; (17) fraud and misrepresentation; (18) trespass and intentional infliction of emotional distress; (19) trespass and intentional infliction of mental suffering; (23) civil and criminal conspiracy. As these are all intentional torts for which Defendants enjoy immunity from liability, there is no genuine issue of material fact, and Defendants are entitled to judgment as a matter of law on these ten claims.
With respect to Plaintiff's claims of attempted burglary of home, burglary of a building, assault/attempted burglary, aiding and abetting, and criminal conspiracy, these are really criminal allegations and cannot be prosecuted per se as civil claims. To the extent Plaintiff seeks to assert these criminal charges as state civil claims, the court determines that they constitute intentional torts, for which Defendants cannot be liable because of governmental immunity.
To the extent Plaintiff seeks to assert a claim for excessive force under the Fourth Amendment by the use of the term "assault/attempted murder", the court determines that Plaintiff fails to raise a genuine issue of material fact regarding the use of force. Plaintiff's claim for excessive force must be determined according to Fourth Amendment standards because "all claims that law enforcement officers have used excessive force — deadly or not — in the course of an arrest, investigatory stop, or other `seizure' of a free citizen should be analyzed under the Fourth Amendment and it's `reasonableness' standard, rather than under a `substantive due process' approach." Graham v. Connor, 490 U.S. 386, 395 (1989). The issue of reasonableness centers on whether the officer's actions are "objectively reasonable" in light of the facts and circumstances with which he is faced, without regard to the officer's underlying intent or motivation. Id. at 397. Whether the use of force is reasonable "must be judged from the perspective of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight." Id. at 396. In applying Graham, the Fifth Circuit has used a three-part test for § 1983 excessive force claims, requiring a plaintiff to show (1) an injury, which (2) resulted directly and only from the use of force that was clearly excessive to the need; and the excessiveness of which was (3) objectively unreasonable. Knight v. Caldwell, 970 F.2d 1430, 1432-33 (5th Cir. 1992), cert. denied, 507 U.S. 926 (1993); see also Ikerd v. Blair, 101 F.3d 430, 433-34 (5th Cir. 1996); Spann v. Rainey, 987 F.2d 1110, 1115 (5th Cir. 1993). Injury means damage or harm to the physical structure of the body, including diseases that naturally result from the harm. Knight v. Caldwell, 970 F.2d at 1433. Although he states that he was injured while running in the dark when shots were fired on January 10, 1995, none struck Plaintiff. Plaintiff does not state the nature of or describe his injury in any way. There is no evidence that he suffered damage or harm to the physical structure of his body, or that any disease resulted from the shots being fired. As Plaintiff has not suffered any injury, as defined, the court need not address the remaining two prongs of the test. Plaintiff's claim fails as a matter of law.
Plaintiff's excessive force claim also fails because he has not shown any personal involvement or participation of Sheriff Harris regarding any force that was directed toward him. In this circuit, it is well-established that a supervisor such as Sheriff Harris is liable under § 1983 only if his conduct causes the constitutional violation or if the supervisor was deliberately indifferent to the violation of a constitutional right. Doe v. Taylor Indep. Sch. Dist., 15 F.3d 443, 454 n. 8 (5th Cir.) ( en banc), cert. denied, 513 U.S. 815 (1994) (citing City of Canton v. Harris, 489 U.S. 378, 388 (1989)); see also Hinshaw v. Doffer, 785 F.2d 1260, 1263 (5th Cir. 1985); Lozano v. Smith, 718 F.2d 756, 768 (5th Cir. 1983). Section 1983 does not impose liability on a sheriff under a theory of respondeat superior or vicarious liability. See Baskin v. Parker, 602 F.2d 1205, 1208 (5th Cir. 1979) (holding that a sheriff can be held liable for his personal participation in the conduct in question but cannot be held liable on the basis of vicarious liability). Since Plaintiff has failed to establish, or raise a genuine issue of material fact, that Sheriff Harris was personally involved or personally participated in the alleged use of excessive force against him, Sheriff Harris is entitled to judgment on this claim.
This same analysis applies to and disposes of Plaintiff's claims of illegal detention, false arrest, and illegal search in that Plaintiff has failed to establish that Sheriff Harris ordered or personally participated in any acts on which Plaintiff bases these claims, except for the one search in which Sheriff Harris participated after he obtained Plaintiff's consent. Plaintiff, however, told the sheriff that he could "search all [he] want[ed] to" and signed a consent to search form. A consent to search is an exception to the general requirement that law enforcement officers conduct a search pursuant to probable cause and with a valid search warrant. See Tamez v. City of San Marcos, Texas, 118 F.3d 1085, 1093 (5th Cir. 1997), cert. denied, 522 U.S. 1125 (1998). Since Plaintiff gave his consent for the sheriff to search his premises, no liability results from the one search in which Sheriff Harris participated. The lack of personal involvement or participation is dispositive of any claim that Perry asserts against Harris as a result of his deputies investigating the two complaints by Allen in 1997 regarding Plaintiff's dogs. Sheriff Harris is thus entitled to summary judgment on all claims arising from incidents in which he did not personally participate or direct, or for which he had consent from Plaintiff.
E. Lack of Cognizable Claims
Plaintiff asserts a number of claims which are not cognizable under the United States Constitution or any federal law, that is, neither the Constitution nor federal law recognizes such a claim as asserted by Plaintiff and relevant to these Defendants. Specifically, these claims are either claims which are state law claims in tort or contract, or claims which the courts have not made applicable to state officials acting under color of state law. The specific claims raised by Plaintiff which are not cognizable are: (7) loss of right to keep and bear arms; (14) gross negligence; (15) replevin; (16) ultrahazardous activities; (20) specific performance; (21) specific performance and deprivation of rights and enjoyment of property; and (22) violation of the Freedom of Information Act and the Texas Open Records Act. Since these are not cognizable federal claims, Plaintiff cannot use § 1983 as a means to vindicate the violation of his alleged rights.
F. Plaintiff's Policy Claims
The court addresses separately Plaintiff's policy claims. With respect to the training and supervision of the deputy sheriffs, Plaintiff is not familiar with the Texas Commission on Law Officer Standards and Education (TCLOSE), the training that deputies of the Kaufman County Sheriff's Department are required to have to hold certified peace officer licenses, the types of training required, the routine training seminars conducted by the Sheriff's Department, or the other schools and training institutes deputies attend to update and hone skills they have learned. All deputies of the Kaufman County Sheriff's Department are trained officers certified by the State of Texas. They have received training in property search techniques, investigation of crimes, handling of citizen complaints, and other subjects related to law enforcement. Members of the Kaufman County Sheriff's Department are not trained to burglarize citizens' homes, harass citizens, or use unnecessarily force or endanger anyone while discharging their responsibilities. Deputies must use individual discretion in carrying out their responsibilities and are supervised by their superiors in the chain of command, which ultimately includes Sheriff Harris.
Plaintiff has no knowledge of a variety of Kaufman County policies and customs. Plaintiff knows of no policy approving searches without search warrants. Perry does not know of any policy or custom that led to the violation of his right to be free from illegal searches. Plaintiff knows of no policy of the County regarding people working without proper supervision. He has no knowledge of any policy promoting unreliable methods of researching warrants. Likewise, Perry knows of no policy of the County reflecting that the safety and the welfare of the people of Kaufman County are not important and are not going to be addressed by the county or sheriff.
Plaintiff's suit against Defendant Harris in his official capacity is treated as a claim against Kaufman County, the governmental entity of which Harris is an employee, representative, or official. See Hafer v. Melo, 502 U.S. 21, 25 (1991); Brooks v. George County, 84 F.3d 157, 165 (5th Cir.), cert. denied, 519 U.S. 948 (1996). 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 Commissioners 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 [county] lawmaking officers or by an official to whom the lawmakers have delegated policy-making authority; or
2. A persistent, widespread practice of [county] officials or employees which, although not authorized by officially adopted and promulgated policy, is so common and well-settled as to constitute a custom that fairly represents [county] policy. Actual or constructive knowledge of such custom must be attributable to the governing body of the [county] 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); Bennett v. City of Slidell, 735 F.2d 861, 862 (5th Cir. 1984). 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 or harm suffered 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 403-04.
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 [county] policy with respect to the action ordered. The official must also be responsible for establishing final government policy respecting such activity before the [county] 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 St. Louis v. Praprotnik, 485 U.S. 112, 127 (1988); Worsham v. City of Pasadena, 881 F.2d 1336, 1340-41 (5th Cir. 1989).
For purposes of Defendants' summary judgment motion, the court finds that Sheriff Harris is a policymaker because "[i]t has long been recognized that, in Texas, the county sheriff is the county's final policymaker in the area of law enforcement." Colle v. Brazos County Texas, 981 F.2d 237, 244 (5th Cir. 1993) ( quoting Turner v. Upton County, 915 F.2d 133, 136 (5th Cir. 1990)); see also Familias Unidas v. Briscoe, 619 F.2d 391, 404 (5th Cir. 1980).
Plaintiff contends that certain policies were deficient or inadequate. With respect to inadequate policies, Perry contends that Defendants failed to:
(1) provide a reasonably safe and secure place for Plaintiff to be secure in his home, free from unwarranted intrusion by government officials;
(2) ensure that the rights of the citizens of Kaufman County are protected;
(3) develop and maintain a plan to provide for the safety and welfare of the citizens of Kaufman County, and in particular the safety and welfare of the Plaintiff;
(4) establish proper policies and procedures for conducting narcotic raids;
(5) establish proper policies and procedures for conducting research necessary to obtain a valid search warrant;
(6) provide proper policies and procedures with regard to ascertaining whether officers are at the correct address when conducting a narcotics raid; and
(7) provide proper policies and procedures to end a narcotics raid immediately and as soon as any officer is aware that officers have invaded the wrong house.
Plaintiff's Complaint, ¶¶ 110-117. Perry's allegations against Defendants are in essence those of "failure to train," "failure to supervise," or "failure to adopt" policies in the areas mentioned previously.
The summary judgment evidence does not support Plaintiff's contentions regarding inadequate or deficient policies. The affidavit of Sheriff Harris establishes that deputy sheriffs in Kaufman County receive sufficient training and supervision. Perry offers nothing, other than speculation and belief that training and supervision are inadequate. See, e.g., Deposition of Wayne Perry, Defendants' App. at 98. Moreover, a failure to train allegation can be the basis for liability under 42 U.S.C. § 1983 only if the "failure to train 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). In other words, the failure to train must reflect" a "deliberate' or "conscious' choice by a municipality," not to train its officers. Id. at 389. Synder v. Trepagnier, 142 F.3d 791, 796 (5th Cir. 1998) (quoting City of Canton v. Harris, 489 U.S. at 389.), cert. dismissed, 526 U.S. 1083 (1999). Such "deliberate indifference" regarding failure to train or supervise has not been established by Plaintiff. Plaintiff fails to meet his evidentiary burden regarding the failure to adopt or implement a policy. No genuine issue of material fact exists regarding training or supervision. Accordingly, no reasonable jury could return a verdict in Plaintiff's favor regarding the allegations that a policy or custom caused him to be deprived of a constitutionally protected right. Since there is no genuine issue of material fact on the issue of county liability, Defendants are entitled to judgment as a matter of law.
Even if Plaintiff were to adequately set forth an unconstitutional policy, his claim fails as a matter of law because the court has found that Plaintiff has not suffered an underlying constitutional violation such as unlawful arrest or detention, illegal or unreasonable search, or excessive force. When there is no underlying constitutional violation, the policy becomes irrelevant and is "quite beside the point." Los Angeles v. Heller, 475 U.S. 796, 799 (1986); see also Saenz v. Heldenfels Bros., Inc., 183 F.3d 389, 392-3 (5th Cir. 1999). If a person suffers no constitutional injury at the hands of the municipal officer, the alleged unconstitutional policy could not have been the cause of any harm to that person.
G. Plaintiff's Claims regarding Requests for Information
1. Freedom of Information Act Claim
Plaintiff contends that he has been denied certain requested information and that such denial is a violation of the Freedom of Information Act, 5 U.S.C. § 551 et seq. Defendants contend that the Freedom of Information Act has no applicability to state or local governments. The court agrees.
The Act requires each agency of the Government of the United States to make certain information available to the public. See 5 U.S.C. § 551, 552(a). "Agency" is specifically defined as "each authority of the Government of the United States. . . ." See 5 U.S.C. § 551 (1). A state or county is not an authority of the Government of the United States. Given the plain definition of agency, it is readily apparent that the Act has no applicability to the states or local governmental entities. Since the Act does not apply to the states or local governmental entities, Plaintiff's claim is without merit. Summary judgment is therefore appropriate for Defendants on this claim.
2. Texas Open Records Act Claim
Plaintiff contends that he has been denied certain information (the reports of Deputies Knapp and Parks and the 911 tape) to which he is lawfully entitled under the Texas Open Records Act, Tex. Gov't Code Ann. §§ 551 et seq. (Vernon 1994 Supp. 2000). Defendants concede that Plaintiff has requested these records and offer proof that the sheriff would produce them if they were still in existence. Defendants have been presented evidence that the reports cannot be located or are no longer in existence.
The court need not decide whether the reports are in existence or can be located because Plaintiff has an adequate remedy under state law which he has not pursued. A person who has requested information from a public entity may file a suit for writ of mandamus to compel the governmental entity to make the requested information available. Tex. Gov't Code § 552.321 (Vernon Supp. 2000). Since Plaintiff has this remedy available and has not established that it is inadequate, the court concludes that the Texas Open Records Act is inapplicable to this action. Summary judgment is thus appropriate for Defendants on this claim.
H. Violation of Federal and State Constitutional Rights
The court has found these claims to be barred by the applicable statute of limitations. Also, the court has discussed and ruled on Plaintiff's federal claims in other parts of this opinion and finds no reason to analyze further any of Plaintiff's federal claims. With respect to Plaintiff's claim of a violation of the state constitution, the court finds that such claim is barred because no private right of an action for damages exists for violations of the Texas Constitution. See City of Beaumont v. Bouillion, 896 S.W.2d 143, 148-49 (Tex. 1995). Although Bouillion was a free speech and assembly case under Article I, §§ 6, 27 of the Texas Constitution, other Texas courts have concluded that the holding in Bouillion is not limited to the provisions of the Texas Constitution at issue in Bouillion. See, e.g., Vincent v. West Texas State Univ., 895 S.W.2d 469, 475 (Tex.App.-Amarillo 1995, no writ) (no private right of action exists for violations of Article I, § 3a, a provision of the Texas Constitution not at issue in Bouillion); see also Cote v. Rivera, 894 S.W.2d 536 (Tex.App. — Austin 1995, no writ); City of Alamo v. Montes, 904 S.W.2d 727 (Tex.App.-Corpus Christi 1995, no writ); Jones v. City of Stephenville, 896 S.W.2d 574 (Tex.App.-Eastland 1995, no writ). Based on these authorities, the court concludes that any claim brought by Plaintiff for violations of the Texas Constitution is barred and must be dismissed.
I. Civil and Criminal Conspiracy
The court has addressed this claim in preceding sections of this opinion; however, as Plaintiff's Complaint is vague and difficult to decipher on certain issues, the court believes additional discussion of Plaintiff's civil conspiracy claim is appropriate. The court is uncertain whether Plaintiff seeks to allege a conspiracy under state or federal law, or both. Accordingly, the court addresses the conspiracy allegations under state and federal law.
1. State Law Conspiracy
To prevail on a conspiracy on his state claim, Plaintiff is required to establish each of the following: (1) two or more persons; (2) an object to be accomplished; (3) a meeting of the minds on the object or course of action to accomplish the conspiracy; (4) one or more unlawful overt acts; and (5) damages to Plaintiff as a proximate result of the conspiracy. Massey v. Armco Steel Co., 652 S.W.2d 932, 934 (Tex. 1983). The record is devoid of any evidence to satisfy the second, third, and fourth elements of a conspiracy. At best, Plaintiff has a subjective belief that a conspiracy exists against him because of the incident in January 1995 and an incident in 1997 or 1998; however, he has come forward with no competent summary judgment evidence to satisfy his summary judgment evidentiary burden. Defendants are thus entitled to summary judgment.
2. Federal Conspiracy Claim
To prevail on a § 1983 conspiracy claim, 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). Individuals who assert conspiracy claims must plead and establish "the operative facts upon which their claim is based." Lynch v. Cannatella, 810 F.2d 1363, 1369-70 (5th Cir. 1987). Bald assertions, without more, are insufficient to establish or prevail on a conspiracy claim. Id. at 1370. Plaintiff's Complaint and summary judgment evidence contain only bald assertions and conclusory language, not specific facts, regarding a conspiracy relating to the incident in January 1995 and an incident in 1997 or 1998. This "evidence" is simply too slender of a reed to establish the existence of a conspiracy. Accordingly, this claim fails as a matter of law, and Defendants are entitled to summary judgment.
IV. Miscellaneous Matters
Pending before the court is Plaintiff's Motion to Extend Discovery, filed May 19, 2000. The discovery deadline in this case was May 29, 2000. The court set the discovery deadline based upon what the parties requested in the Joint Status Report. Plaintiff requested two months to complete discovery, and Defendants requested six months to conduct discovery. The court allowed six months for discovery, three times the amount requested by Plaintiff. Plaintiff Perry did not state the nature of the additional discovery that he needed and offered no reason why the discovery could not have been conducted within the time allowed by the court. Perry also stated that "[t]here have been new instances of rights violations since this lawsuit was filed in 1998, which need to be looked into"; however, he did not identify the rights allegedly violated or state when the alleged violations occurred. Moreover, if new violations have occurred, nothing precludes Plaintiff from filing a new lawsuit. Simply stated, Plaintiff failed to show the court that good cause existed to extend the discovery deadline. Accordingly, Plaintiff's Motion to Extend Discovery is denied.