Opinion
Civil Action No. 5:04-CV-215-C.
January 21, 2005
ORDER
On this date, the Court considered Plaintiffs' Motion for Summary Judgment filed December 15, 2004, and Defendant Michael Orndorff's Motion for Summary Judgment filed on December 22, 2004. Neither party filed a timely response to the other's motion for summary judgment. Finally, the Court considered Plaintiffs' Motion to Amend Original Complaint Filed on February 13th, 2004, which was filed on December 20, 2004.
Plaintiffs amended their Original Complaint on November 16, 2004. Thus, Plaintiffs should have titled their latest motion to amend as "Plaintiffs' Motion to Amend First Amended Complaint."
I. PROCEDURAL HISTORY
On February 13, 2004, Plaintiffs, Linda M. Bryant and Donald S. Bryant, Jr., as trustees of the Bryant Family Trust (collectively "Plaintiffs"), filed their Complaint against Defendants Jerry Meyer ("Defendant Meyer"), Michael Orndorff ("Defendant Orndorff"), and All Spouses of the Defendants. The Complaint was originally filed in the Dallas Division of the Northern District of Texas. On September 28, 2004, the case was transferred to this Court by the Honorable Jorge A. Solis. This case is but one of several filed by the Plaintiffs in the Dallas Division that have been transferred to this Court.On October 6, 2004, Plaintiffs filed a Motion for Leave to Amend the Complaint, which was denied for failure to properly plead venue in the proposed amended complaint. Plaintiffs reurged the Motion to Amend on November 1, 2004. On November 16, 2004, the Court granted Plaintiffs' second attempt to amend their complaint and found that Plaintiffs' First Amended Complaint superseded Plaintiffs' Original Complaint. See Order dated Nov. 16, 2004. The Court also found that Plaintiffs' First Amended Complaint, which related back to the filing date of the Original Complaint, contained no mention of Defendant Jerry Meyer or Mrs. Michael Orndorff. Thus, the Court vacated the Clerk's Entry of Default against Defendant Jerry Meyer and dismissed Jerry Meyer and Mrs. Michael Orndorff from the lawsuit. The style of the case was changed to reflect the only remaining defendant, Michael Orndorff. The Court also denied as moot Defendants Michael Orndorff and Mrs. Michael Orndorff's Motion to Dismiss because it addressed a non-live pleading.
Defendant Orndorff filed his Answer to Plaintiffs' First Amended Complaint on December 2, 2004, in which he raised the defense of qualified immunity. Plaintiffs then filed Plaintiffs' Response to Defendant's Answers to Plaintiffs' First Amended Complaint on December 6, 2004. On December 15, 2004, Plaintiffs filed a Memorandum in Support of Motion for Summary Judgment. On December 20, 2004, Plaintiffs filed a Motion to Amend/Correct Complaint, which the Court is denying, for the reasons more fully discussed below. Defendant Orndorff filed a Motion for Summary Judgment on December 22, 2004, along with a separate Motion to Stay Discovery. Plaintiffs filed a response titled Motion to Deny Defendant's Motion to Stay Discovery on December 23, 2004. The Court granted Defendant Orndorff's Motion to Stay Discovery by Order dated December 28, 2004.
The Court treated Plaintiffs' Response to Defendant's Answers as a Rule 7(a) Reply to the assertion of qualified immunity. Plaintiffs' Response to Defendant's Answers argued that qualified immunity should not apply and alleged facts regarding the "theft" or conversion of a stamp collection that, if taken as true, would overcome Defendant's qualified immunity.
Pro se parties must read and follow the Local Rules of this Court and the Federal Rules of Civil Procedure. LR 83.14. The Local Rules can be found on the Northern District of Texas website on the internet, specifically http://www.txnd.uscourts.gov/rules/localrules/lr_civil.html.
Plaintiffs failed to file a motion with their memorandum. Although the Local Rules for the Northern District of Texas provide that a party may file a document that contains more than one pleading, LR 5.1 (c) ("Any such document must clearly identify each included pleading, motion, or other paper in its title."), motions for summary judgment require separate motions and briefs. LR 56.5(a) ("Notwithstanding LR 5.1(c), the brief must be filed as a separate document from the motion or response which it supports."). Thus, Plaintiffs' Memorandum in Support of Motion for Summary Judgment is not a properly filed "motion" before this Court.
Moreover, Plaintiffs failed to file a separate appendix. LR 56.6(b)(1) ("The appendix must be assembled in a self-contained document, separate from the motion and brief or response and brief."). Plaintiffs also failed to properly number the pages of their appendix. LR 56.6(b)(3). Finally, Plaintiffs failed to include in their brief citations to each page of the appendix that supports each assertion made concerning summary judgment evidence. LR 56.5(c). Plaintiff failed to make any assertions regarding the summary judgment evidence in their Memorandum other than the blanket statement: "IN SUPPORT OF PLAINTIFFS MOTION, PLAINTIFF INCLUDES EVIDENCE IN THE ATTACHED APPENDIX. THE MOTION FOR SUMMARY JUDGEMENT IS BASED UPON PROOF INCLUDED IN THE APPENDIX." See Pl. Mem. in Supp. Mot. Summ. J. at 4 (all caps and errors in original). Plaintiffs then include a list of their attached documents.
II. FACTUAL BACKGROUND
Plaintiffs' First Amended Complaint advances claims against Defendant Michael Orndorff for constitutional violations and theft. Plaintiffs allege Defendant Orndorff executed a warrant upon their residence and seized numerous items. Specifically, Plaintiffs allege that Defendant Orndorff "took something that was not even called for [in] the so called warrant[,] those articles were a stamp collection. . . ." See Pl. First Amend. Compl. at 2. Plaintiffs also allege that certain letters were seized in the execution of the warrant that were in no way part of the scope or objective of this investigation." Id. at 2-3. Plaintiffs further allege that the agent "had no warrant to seize my equipment." Id. at 2. Plaintiffs allege that Mr. Orndorff "has violated said Plaintiffs' Fourth and Fourteenth Amendments to the Constitution of the United States. Id. at 3. Plaintiffs also allege that no copy of the warrant was left at the residence and that they were never allowed to see said warrant, if one in fact existed. Id. at 1-3.III. STANDARDS
Summary judgment is appropriate only if "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any," when viewed in the light most favorable to the non-moving party, "show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247 (1986) (internal quotations omitted). A dispute about a material fact is "genuine" if the evidence is such that a reasonable jury could return a verdict for the non-moving party. Id. at 248. In making its determination, the court must draw all justifiable inferences in favor of the non-moving party. Id. at 255. Once the moving party has initially shown "that there is an absence of evidence to support the nonmoving party's case," Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986), the non-movant must come forward, after adequate time for discovery, with significant probative evidence showing a triable issue of fact. FED. R. CIV. P. 56(e); State Farm Life Ins. Co. v. Gutterman, 896 F.2d 116, 118 (5th Cir. 1990). Conclusory allegations and denials, speculation, improbable inferences, unsubstantiated assertions, and legalistic argumentation are not adequate substitutes for specific facts showing that there is a genuine issue for trial. Douglass v. United Servs. Auto. Ass'n, 79 F.3d 1415, 1428 (5th Cir. 1996) (en banc); SEC v. Recile, 10 F.3d 1093, 1097 (5th Cir. 1993). To defeat a properly supported motion for summary judgment, the non-movant must present more than a mere scintilla of evidence. See Anderson, 477 U.S. at 251. Rather, the non-movant must present sufficient evidence upon which a jury could reasonably find in the non-movant's favor.
In reviewing the summary judgment evidence, "Rule 56 does not impose upon this Court a duty to sift through the record in search of evidence to support a party's opposition to summary judgment." Ragas v. Tenn. Gas Pipeline Co., 136 F.3d 455, 458 (5th Cir. 1998). Rather, the Court need rely only on those portions of the submitted documents to which the nonmoving party directs the Court's attention. Id.; see also Forsyth v. Barr, 19 F.3d 1527, 1536-37 (5th Cir. 1994) (finding that two volumes of summary judgment evidence were insufficient to preclude summary judgment when the plaintiffs failed to identify specific portions which supported their claims).
Rule 56(e), Federal Rules of Civil Procedure, requires the party against whom the motion is made to "set forth specific facts showing that there is a genuine issue for trial." Absent such a showing, a properly supported motion for summary judgment should be granted. See Eversley v. MBank Dallas, 843 F.2d 172, 173-74 (5th Cir. 1988); Resolution Trust Corp. v. Starkey, 41 F.3d 1018, 1022-23 (5th Cir. 1995). Once a properly supported motion for summary judgment is presented, the nonmoving party must rebut with "significant probative" evidence. Ferguson v. National Broadcasting Co., Inc., 584 F.2d 111, 114 (5th Cir. 1978). "[T]he nonmoving litigant is required to bring forward significant probative evidence demonstrating the existence of a triable issue of fact." In Re Municipal Bond Reporting Antitrust Lit., 672 F.2d 436, 440 (5th Cir. 1982). A party defending against a proper motion for summary judgment may not rely on mere denial of material facts or on unsworn allegations in the pleading or arguments and assertions in briefs or legal memoranda; rather, the party's response, by affidavit or otherwise, must set forth specific facts showing that there is a genuine issue for trial. See Union Planters Nat'l Leasing v. Woods, 687 F.2d 117, 119 (5th Cir. 1982).
IV. DISCUSSION
Defendant Michael Orndorff seeks summary judgment on the Plaintiffs' claims, arguing that (1) he is entitled to qualified immunity as to Plaintiffs' constitutional claims against him individually, and (2) the seizure of Plaintiffs' items was conducted pursuant to a valid warrant.
Although Plaintiffs failed to properly file a motion for summary judgment, see note 3, supra, even if the Court considered Plaintiffs' arguments and evidence presented in their Memorandum in Support of Motion for Summary Judgment for the sake of thoroughness, Plaintiffs still have failed to show that a genuine issue of material fact exists regarding Defendant Orndorff's qualified immunity.
Plaintiffs' own proffered evidence included a copy of the valid search and seizure warrant issued on May 9, 2002, by the Magistrate Judge. Moreover, Plaintiffs failed to include any proper summary judgment evidence that a stamp collection was seized by Defendant Orndorff. Neither Plaintiffs' conclusory allegations in their First Amended Complaint nor their conclusory affidavits making such assertions are proper summary judgment evidence. See Douglass v. United Servs. Auto. Ass'n, 79 F.3d 1415, 1428 (5th Cir. 1996) (en banc) (conclusory allegations and denials, speculation, improbable inferences, unsubstantiated assertions, and legalistic argumentation are not adequate substitutes for specific facts showing that there is a genuine issue for trial).
Officials sued in their individual capacity may assert a defense of qualified immunity. See Petta v. Rivera, 143 F.3d 895, 898 (5th Cir. 1998). The doctrine of qualified immunity serves to shield a government official as "an immunity from suit rather than a mere defense to liability[.]" Saucier v. Katz, 533 U.S. 194, 121 S. Ct. 2151, 2156 (2001) (quoting Mitchell v. Forsyth, 472 U.S. 511, 526 (1985)). Because qualified immunity is an immunity from suit, the affirmative defense should be resolved at the earliest possible stage of litigation, Saucier, 121 S. Ct. at 2156, and should protect "all but the plainly incompetent or those who knowingly violate the law." Malley v. Briggs, 475 U.S. 335, 344-345 (1986).
In analyzing whether an individual defendant is entitled to qualified immunity, the Court must ask a threshold question: "Taken in the light most favorable to the party asserting the injury, do the facts alleged show the [defendant]'s conduct violated a constitutional right?" Saucier, 121 S. Ct. at 2156. The Fifth Circuit does "not require that an official demonstrate that he did not violate clearly established federal rights; [precedence] places that burden upon plaintiffs." Thompson v. Upshur, 245 F.3d 447, 456 (5th Cir. 2001). "[I]f a [constitutional] violation could be made out on a favorable view of the parties' submissions, the next, sequential step is to ask whether the right was clearly established." Id. (alterations added). In other words, the Court should examine whether it would be clear to a reasonable defendant that his conduct is unlawful in the situation he confronted. Wilson v. Layne, 526 U.S. 603, 615 (1999).
To the extent that the plaintiff is able to show that a violation of a clearly established constitutional right occurred, the Court must then make an additional inquiry and determine whether the defendant official's alleged conduct was objectively reasonable in light of the constitutional right allegedly violated. See Glenn v. City of Tyler, 242 F.3d 307, 312 (5th Cir. 2001). However, if the plaintiff is unable to show a constitutional violation or that such a right was clearly established at the time, the inquiry ceases and there is no need to address the next step of the analysis of objective reasonableness. Nunez v. Simms, 341 F.3d 385, 392 (5th Cir. 2003). "The defendant's acts are held to be objectively reasonable unless all reasonable officials in the defendant's circumstances would have then known" that the defendant's conduct violated the plaintiff's asserted constitutional rights or a federal statute. Thompson, 245 F.3d at 457 (emphasis in original). The "defendant's circumstances" include facts known to the defendant at the time, id., and the particulars of the challenged conduct. Pierce v. Smith, 117 F.3d 866, 872 (5th Cir. 1997). However, a particular defendant's subjective state of mind has no bearing on whether he is entitled to qualified immunity. Id. at 871, n. 5. If defendants "of reasonable competence could disagree on th[e] issue, immunity should be recognized." Malley v. Briggs, 475 U.S. 335, 341 (1986).
Constitutional Claims
Defendant has presented summary judgment evidence, a valid search warrant, showing that the search of Plaintiffs' residence and the seizure of certain items were properly conducted pursuant to a valid search warrant. See Def. App. at 1. Defendant has also presented the affidavit upon which the search warrant was based. Id. at 4. Thus, the warrant was facially valid under the Fourth Amendment because it was based upon probable cause and supported by a sworn affidavit describing the place and things to be seized. Groh v. Ramirez, 124 S. Ct. 1284, 1289 (2004); see Def. App. 1-19. Because Defendant conducted his search of Plaintiffs' residence pursuant to a valid warrant, his actions of entering the home and seizing the specified property were objectively reasonable under clearly established law. Hart v. O'Brien, 127 F.3d 424, 445 (5th Cir. 1997), abrogated on other grounds by Spivey v. Robertson, 197 F.3d 772 (5th Cir. 1999). Plaintiffs have not asserted that the warrant was facially invalid or that Defendant Michael Orndorff executed the warrant in any way other than as prescribed by the magistrate judge. The Court finds that Defendant did not violate any clearly established law, specifically Plaintiffs' Fourth or Fourteenth Amendment rights. The Court finds that Defendant Michael Orndroff's actions were objectively reasonable in light of the circumstances. Defendant Michael Orndorff is entitled to qualified immunity from Plaintiffs' constitutional claims. Thus, Defendant Michael Orndorff's Motion for Summary Judgment is GRANTED as to Plaintiffs' constitutional claims.
Theft/Conversion Claim
Defendant has presented the inventory list, see Def. App. at 20, for the items seized, as well as Plaintiff Donald S. Bryant, Jr.'s letter requesting the return of his equipment seized in the search. Id. at 26. Defendant argues that if a stamp collection had been taken, Donald S. Bryant, Jr. would logically have insisted on its inclusion in the property receipt before signing each page of the document. See Br. in Supp. Def. Mot. Summ. J. at 5. Defendant also argues that Plaintiff Donald S. Bryant, Jr., sent a letter to the FBI Lubbock Field Office on April 21, 2003, requesting the return of various items of personal property seized in the search of his home. Id.; Def. App. at 26-27. Defendant argues that the letter made no mention of a stamp collection. Id. Defendant asserts that the clear implication is that a stamp collection simply was not taken in the FBI's search of the residence. Id.
Plaintiffs allege that a stamp collection was taken. See Pl. First Amend. Compl. at 2-3. Mere allegations are not sufficient summary judgment evidence. See Douglass, 79 F.3d at 1428 (conclusory allegations, speculation, improbable inferences, and unsubstantiated assertions are not adequate substitutes for specific facts showing that there is a genuine issue for trial). Only one of Plaintiffs' affidavits avers that a stamp collection existed — it does not aver that the collection was seized or otherwise taken. Although no proper motion for summary judgment by Plaintiffs is before the Court, see note 3, supra, the Court did review Plaintiffs' Memorandum and Appendix to satisfy itself that there was no genuine issue of material fact. See Pl. Mem. in Supp. Mot. Summ. J., Aff. Donald Stuart Bryant. Plaintiffs have failed to present a properly supported motion for summary judgment or to properly direct the Court to significant probative evidence which would rebut Defendant's properly presented evidence.
After reviewing Defendant's uncontroverted summary judgment evidence, the Court finds that Plaintiff also failed to produce evidence showing that there is a genuine issue of material fact that Defendant Michael Orndorff seized or took a stamp collection or any other item not on the inventory list signed by Donald S. Bryant, Jr. Thus, Defendant Michael Orndorff's Motion for Summary Judgment is GRANTED as to Plaintiffs' claims for "theft"/civil conversion.
Amending the Complaint
On December 20, 2004, Plaintiffs moved to amend their original complaint filed on February 13, 2004. Plaintiffs' Motion to Amend is DENIED for several reasons. The first reason is that Plaintiffs are apparently attempting to amend a complaint that is no longer the proper live pleading before the Court. See Order dated Nov. 16, 2004 (allowing Plaintiffs to amend the original complaint thereby superseding the original complaint with Plaintiff's First Amended Complaint and abandoning some claims). Second, Plaintiffs failed to include a copy of the proposed amended complaint. LR 15.1; see Pl. Mot. to Amend. Orig. Compl. Filed on Feb. 13, 2004. Rather, Plaintiffs included a copy of the no-longer-live Original Complaint. See id. The third reason Plaintiffs' Motion is denied is because Plaintiffs are attempting to add Roger L. McRoberts, an Assistant United States Attorney present at the search and seizure, as a defendant in this lawsuit. See id. ("to amend its petition . . . to name additional defendants, Plaintiffs would now name a Mr. Roger L. McRoberts, ASUSA [sic], of the Department of Justice"). Because the Court has found that the search and seizure were conducted pursuant to a valid warrant, the Court need not allow Plaintiffs to amend and add a defendant if such amendment would be futile. See Riley Stoker v. Fidelity Guar. Ins., 26 F.3d 581, 593 (5th Cir. 1994). As an Assistant United States Attorney, any claim against Mr. McRoberts in his official capacity would be barred and any claim against him in his individual capacity would be subject to the defense of qualified immunity. Plaintiffs have not alleged any facts that would prevent dismissal of their claims against Mr. McRoberts. Thus, the addition of Mr. McRoberts to this lawsuit would be futile. Fourth, the Court finds that Plaintiffs' attempt to add Mr. McRoberts is patently frivolous and without any basis in law or fact.
V. CONCLUSION
For the reasons stated above, Plaintiffs' Motion to Amend Original Complaint is DENIED, Plaintiffs' Motion for Summary Judgment is DENIED, Defendant's Motion for Summary Judgment is GRANTED, and Plaintiffs' claims against Defendant are DISMISSED with prejudice.
To the extent that Plaintiffs may also be asserting claims against Mr. Michael Orndorff in his official capacity as an agent employed by the Federal Bureau of Investigation, such claims are DISMISSED with prejudice.
SO ORDERED.