Opinion
NO. 3-02-CV-1536-M
January 26, 2004
FINDINGS AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE
Defendants Andrea Perez and William Everett have filed a motion for summary judgment in this prisoner civil rights action brought under 42 U.S.C. § 1983 and Texas law. For the reasons stated herein, the motion should be granted.
I.
On August 2, 2000, Terri Grimes called the Dallas Police Department to report a possible kidnapping. (Def. App. at 1, 9). The case was assigned to Detective William Everett and his supervisor, Sergeant Andrea Perez, who interviewed Grimes at her home located at 5022 Linder Avenue in Dallas, Texas. ( Id. at 2, 10). According to Grimes, Plaintiff Terrence L. Swanson appeared at her front door early that morning and asked to speak with his former girlfriend, Ursela "Denise" Horton. Upon entering the house, plaintiff took Horton into the bathroom. Grimes told the detectives that she heard a commotion that sounded like a physical altercation, "as if someone was being thrown around." When plaintiff and Horton finally emerged from the bathroom, plaintiff had a gun in his hand. Grimes attempted to flee, but plaintiff grabbed her, shoved her up against the door frame, and kicked her after she fell down. Plaintiff then fired his gun at a window in the living room and threatened to kill everybody in the house. Horton quickly gathered some clothes and left with plaintiff. Concerned that plaintiff would harm Horton and return to make good on his threat, Grimes called the police. ( Id. 2-3, 10, 35-36).
Grimes told Perez and Everett that she believed plaintiff had taken Horton to his mother's house at 3203 Seevers Avenue in Dallas, Texas. ( Id. at 3, 10-11). The detectives proceeded to that location where they were met by other police officers and informed that a brown car parked in front of the house belonged to plaintiff. ( Id. at 3, 11). Perez then telephoned the house and left a message on an answering machine asking the person or persons inside to return her call. Other officers had also called the house and left similar messages. When no one called backed, Perez requested assistance from the Tactical Unit, also known as the "SWAT" team. After the SWAT team arrived, Horton called the police from inside the house and was told that she and plaintiff needed to surrender. Shortly thereafter, plaintiff and Horton came out of the house. The SWAT team immediately entered the premises to conduct a protective sweep in order to determine whether anyone remained inside. ( Id. at 3-4, 11).
Once rescued from her captor, Horton was interviewed by Perez and Everett at police headquarters. Both detectives described Horton as "genuinely upset, unsettled, and fearful." ( Id. at 5, 13). Although she was afraid of plaintiff, Horton signed a statement describing the incident at the Grimes home. Horton said that plaintiff came to the house early on August 2, 2000, took her into the bathroom, and "started choking me and banging my head up against the wall . . ." Plaintiff then pulled out a gun and held it to her head. Horton confirmed that plaintiff threatened to "kill us all" if she refused to leave with him. Reluctantly, Horton agreed to accompany plaintiff to his mother's house where he continued to verbally and physically assault her. ( Id. at 5-6, 13, 37-39). At one point during the interview, Horton told the detectives that plaintiff might have hidden his gun and a bloody t-shirt she was wearing at the house. ( Id. at 5-6, 13).
Based on this information, Perez obtained a search warrant from a Dallas County magistrate. ( Id. 6, 14; see also Plf. App. at 111-12). The warrant authorized the police to search the residence at 3203 Seevers for a "recently fired blue steel weapon" and a "bloody t-shirt." (Def. App. at 33-34; Plf. App. at 111-12). Despite searching the premises for about an hour, officers were unable to find either a gun or a bloody t-shirt. (Def. App. at 6, 14).
Plaintiff was arrested and charged with aggravated kidnapping, aggravated assault, and retaliation. After spending six months in jail, plaintiff was acquitted on all charges. (Plf. App. at 61-62, ¶¶ 19-20). Plaintiff now sues Perez and Everett for civil rights violations under 42 U.S.C. § 1983 and for malicious prosecution under Texas law. Defendants have filed a motion for summary judgment as to all claims and causes of action. The issues have been briefed by the parties and the motion is ripe for determination.
Plaintiff is currently incarcerated on an unrelated charge.
II.
Summary judgment is proper when there is no genuine issue as to any material fact and the movant is entitled to judgment as a matter of law. FED. R. CIV. P. 56(c); Celotex v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 2552, 91 L.Ed.2d 265 (1986). A dispute is "genuine" if the issue could be resolved in favor of either party. Matsushita Electric Industrial Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 1356, 89 L.Ed.2d 538 (1986). A fact is "material" if it might reasonably affect the outcome of the case. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986).
A summary judgment movant who does not have the burden of proof at trial must point to the absence of a genuine fact issue. Tubacex, Inc. v. M/V Risan, 45 F.3d 951, 954 (5th Cir. 1995). The burden then shifts to the non-movant to show that summary judgment is not proper. Duckett v. City of Cedar Park, 950 F.2d 272, 276 (5th Cir. 1992). The parties may satisfy their respective burdens by tendering depositions, affidavits, and other competent evidence. Topalian v. Ehrman, 954 F.2d 1125, 1131 (5th Cir.), cert. denied, 113 S.Ct. 82 (1992). All evidence must be viewed in the light most favorable to the party opposing the motion. Rosado v. Deters, 5 F.3d 119, 122 (5th Cir. 1993). However, conclusory statements, hearsay, and testimony based on conjecture or subjective belief are not competent summary judgment evidence. Topalian, 954 F.2d at 1131.
As part of their reply brief, defendants object to much of the summary judgment evidence submitted by plaintiff. ( See Def. Reply at 2-3, ¶¶ 1-10). This includes certain statements made by plaintiff in his unsworn declaration and the affidavits of Nickki George, Faye Polk, and Tanya Williams Sanchez. As none of the evidence objected to by defendants is necessary to the disposition of the pending motion, their objections are overruled as moot. See Althouse v. Dallas Co. Jail Medical Dep't, 2002 WL 1398555 at *3 n. 3 (N.D. Tex. Jun. 26, 2002).
A.
Plaintiff alleges that Perez and Everett illegally entered his house without a warrant, or allowed other police officers to conduct a warrantless search of his home, in violation of the Fourth and Fourteenth Amendments to the United States Constitution. ( See Plf. Am. Compl. at 5, ¶ 17(i)). In addition, plaintiff maintains that Perez illegally obtained a warrant to search his residence. ( Id. at 5-6, ¶ 17(ii)). Defendants counter that plaintiff cannot establish an underlying constitutional violation or, alternatively, they are entitled to qualified immunity. The court will address these claims in turn.1.
The court initially observes that plaintiff does not challenge the initial warrantless search of his home conducted by the SWAT team. Instead, plaintiff contends that either the defendants or other police officers re-entered the premises without a warrant approximately 45 minutes after this initial search concluded. In support of this claim, plaintiff relies on the affidavits of three witnesses, Nickki George, Faye Polk, and Tanya Williams Sanchez. George and Polk testified that a second group of police officers entered the Swanson residence after the SWAT team completed its initial search and "continued to walk in and out of the house, for at least thirty minutes." (Plf. App. at 94, ¶ 5; see also id. at 97, ¶ 6). Sanchez stated that a female plainclothes officer went into the house with the SWAT team and walked out with Horton. ( Id. at 100, ¶ 8). After plaintiff was handcuffed and taken away in a patrol car, Sanchez said:
Plaintiff, through his attorney, conceded at oral argument that this search was justified by exigent circumstances.
. . . I witnessed a number of officers collectively enter the house. I saw between 5 and 10 SWAT officers go into the house; these officers did not have their guns drawn but were casually entering the Swansons' home. I saw some of the officers who had exited the house dusting themselves off while they were in the front yard; it appeared that they were dusting off attic insulation. In addition to SWAT officers, I also saw at least two plainclothes officers briefly enter the Swansons' home and wandering near the home, after Terrence had been driven away.
( Id. at 101, ¶ 10).
Assuming arguendo that the police conducted a second warrantless search of plaintiffs residence after the SWAT team completed its initial search, there is no evidence that either Perez or Everett participated or were otherwise involved in this subsequent search. Although Sanchez testified that two plainclothes officers participated in the second search, no witness has ever identified those officers as Perez and Everett. Nor is there any evidence that Perez and Everett were the only two plainclothes officers on the scene. Moreover, plaintiff stated in his declaration that an unidentified female plainclothes officer, presumably Perez, accompanied him to the Dallas Police Command Post and that Everett interviewed him upon his arrival at police headquarters. ( Id. at 60, ¶ 11; 61. ¶¶ 15-17). This at least suggests that defendants were engaged in other activities at the time of the alleged second warrantless search. Other than plaintiffs own suspicions and surmise, there is no evidence that Perez or Everett were personally involved with, directed, or exercised supervisory control over the search of his home. See Douthit v. Jones, 641 F.2d 345, 346 (5th Cir. 1981) (plaintiff must establish either that the defendant "was personally involved in the acts causing the deprivation of his constitutional rights or that a causal connection exists between an act of the [defendant] and the alleged constitutional violation"). Defendants are entitled to summary judgment as to this claim.
2.
Plaintiff further alleges that his constitutional rights were violated when Perez sought and obtained a warrant to search his home for a gun and a bloody t-shirt. The search warrant affidavit signed by Perez stated, in pertinent part:
Suspect Terrance Swanson kidnapped a victim from 5022 Linden on this date, 8-2-00, and took her at gunpoint to 3203 Seevers. Tactical Division was called and he was arrested at the scene. The victim was also found at this location. The weapon used in this offense and a bloodied t-shirt that the victim was wearing are still at the location.
(Plf. App. at 111, ¶(5). According to plaintiff, Perez should have disclosed that: (1) the sources of this information, Grimes and Horton, were unreliable witnesses; (2) his house had already been searched by the police; and (3) no bullets or shell casings were recovered from the Grimes home.
The Fourth Amendment prohibits a police officer from knowingly, intentionally, or recklessly making false statements in a search warrant affidavit, or omitting material facts from the affidavit, if the false or omitted information is necessary to a finding of probable cause. See Franks v. Delaware, 438 U.S. 154, 171-72, 98 S.Ct. 2674, 2684, 57 L.Ed.2d 667 (1978); Hale v. Fish, 899 F.2d 390, 400 (5th Cir. 1990). The summary judgment record contains no evidence that Perez knowingly, intentionally, or recklessly made false statements or omitted material information from her affidavit. To the contrary, Perez had been told by Grimes that plaintiff entered her house, fought with Horton in the bathroom, discharged a gun in her living room, and attacked her when she tried to flee. (Def. App. at 10). Horton told a similar story. ( Id. at 13). In addition, Perez personally observed that Grimes had bruises on her left arm and leg and found a hole in a window seal of her living room that was consistent with a bullet hole. ( Id. at 11). Contrary to plaintiff's assertion, Perez had no reason to believe that Grimes and Horton were unreliable witnesses or that the bullet itself was necessary to a determination of probable cause. Nor was Perez obligated to inform the magistrate that the SWAT team had already searched plaintiff's home. At the time the initial search was conducted, the police were unaware of the gun and bloody t-shirt. Horton did not tell Perez about these items until she was interviewed at police headquarters later that afternoon. ( Id. at 13). Therefore, there was no reason for Perez to disclose the initial search in her affidavit. Defendants are entitled to summary judgment as to this claim.
3.
Defendants also seek summary judgment on the grounds of qualified immunity. Police officers are immune from suit for discretionary acts performed in good faith while acting within the scope of their authority unless their conduct violates a "clearly established . . . constitutional right [ ] of which a reasonable person would have known." Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 2738, 73 L.Ed.2d 396 (1982). Because plaintiff has not proved an underlying constitutional violation, this terminates the qualified immunity analysis. See Stuart v. Villareal, 2003 WL 22329019 at *4 (N.D. Tex. Oct. 7, 2003).
B.
Finally, plaintiff sues for malicious prosecution under Texas law. Among the essential elements of such a claim are the absence of probable cause to initiate the prosecution and malice on the part of the defendants. See Richey v. Brookshire Grocery Co., 952 S.W.2d 515, 517 (Tex. 1997). Here, plaintiff cannot establish either element. A Dallas County magistrate determined that there was probable cause to bind plaintiff over to the grand jury on charges of aggravated kidnapping, aggravated assault, and retaliation. (Def. App. at 47). Although plaintiff was eventually acquitted of those charges, there is no evidence that defendants lacked probable cause to arrest plaintiff or commence the prosecution. Nor is there any evidence of malice. Consequently, this claim fails as a matter law. See Morgan v. City of Waco, 2003 WL 21640563 at *4 (N.D. Tex. Jul. 9, 2003), amended on other grounds, 2003 WL 2165389 (N.D. Tex. Jul. 11, 2003), adopted by 2003 WL 22658203 (N.D. Tex. Nov. 7, 2003).
The Fifth Circuit has recently held that there is no "freestanding constitutional right" to be free from malicious prosecution. Castellano v. Fragozo, 352 F.3d 939, 945 (5th Cir. 2003) (en banc). As a result, any such claim arises exclusively under state law.
RECOMMENDATION
Defendants' motion for summary judgment should be granted. This case should be dismissed with prejudice.