Opinion
Civil Action No. 3:00-CV-2247-D
August 2, 2002
CONCLUSIONS AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE
Plaintiff David Wayne McCall ("McCall") has sued Defendants Randall Johnson ("Johnson") and the City of Irving ("the City"), among other defendants, for violation of his civil rights pursuant to 42 U.S.C. § 1983. Pursuant to the District Court's Order of Reference, filed January 24, 2002, and the Chief Judge's Special Order No. 3-204, filed April 19, 2002, the following motions have been referred to this Court for recommendation: (1) the Motion for Summary Judgment, filed by Johnson and the City on January 23, 2002; (2) Plaintiffs Motion to Strike Defendant Randall Johnson's Affidavits, filed February 27, 2002; and (3) Defendants' Objections to Plaintiff's Evidence, filed March 12, 2002. The Court has reviewed the entire record and recommends that the District Court: (1) grant summary judgment in favor of Johnson and the City, (2) deny Plaintiffs motion to strike Johnson's affidavits, and (3) overrule as moot Defendants' objections to Plaintiffs evidence.
These background facts are taken from the parties' summary judgment pleadings. Unless characterized as a contention by one of the parties, these facts are undisputed.
On the morning of November 21, 1995, police officers from the City of Irving Police Department ("IPD") were dispatched to a location in Irving, where they found the body of a female lying in the grass. They later identified the deceased as Staci Terrill. After the police conducted a crime scene investigation, Ms. Terrill's body was transported to the Southwestern Institute of Forensic Sciences ("the Institute") for an autopsy. The autopsy revealed that Ms. Terrill had been murdered by a gunshot wound to the head. The Institute obtained trace evidence, consisting of head and pubic hairs, from Ms. Terrill's body. Detective Randall Johnson of the IPD investigated Ms. Terrill's murder.
On October 7, 1998, almost three years after the murder, Johnson received a telephone call from Detective Scott Peters of the City of Coppell Police Department ("CPD"). McCall had been arrested for a probation violation in connection with a sexual assault that he had committed in Irving, Texas, in 1996. McCall was at the CPD because he was a suspect in the CPD's investigation of the August 1995 murder of Catherine Casler. Casler had been murdered while she was out jogging. Detective Peters called Johnson and told him McCall was a suspect in the Casler murder. During the course of his investigation, Johnson also learned that McCall might be a suspect in other homicides in the North Texas area. Over the next two days, McCall voluntarily gave samples of his head hair to the CPD, which submitted the samples to the Institute for comparison with the hairs found on the bodies of Ms. Casler and Ms. Terrill. On October 9, 1998, Johnson learned that Dallas County Criminal Magistrate Kim Nesbitt had issued an arrest warrant for McCall for Ms. Casler's murder.
McCall is currently serving two life sentences for sexual assault. Scae v. McCall, No. F-96-03061-WJ (Crim. Dist. Court No. 3 of Dallas County, Tex. May 28, 1999) and State v. McCall, No. F-99-00787-SJ (Crim. Dist. Court No. 3 of Dallas County, Tex. April 29, 1999).
On October 9, 1998, Charles Lynch, a Trace Evidence Analyst for the Institute who examined McCall's hair samples, informed Johnson that three hairs found on Ms. Terrill's body were "microscopically similar" to McCall's hairs. That same day, Johnson executed a Peace Officer's Affidavit for Warrant of Arrest of McCall. The affidavit recites the following facts:
• the IPD found Ms. Terrill's body on November 21, 1995;
• the IPD investigated the crime scene and had Ms. Terrill's body transported to the Forensic Sciences Institute for an autopsy, which revealed that Ms. Terrill had been murdered by a gunshot wound to the head;
• the IPD obtained trace evidence consisting of head and pubic hairs from Ms. Terrill's body;
• on October 8, 1998, and October 9, 1998, McCall voluntarily gave head hair samples to the CPD and the Forensic Sciences Institute for comparison; and
• on October 9, 1998, Charles Lynch, a Trace Evidence Analyst for the Forensic Sciences Institute, informed Johnson that "three (3) hairs found on [Ms. Terrill's] body [were] microscopically similar to the submitted head hairs of [McCall]."
(Defs.' App. at 9.) Johnson presented the affidavit to a magistrate, who issued a warrant for McCall's arrest. On October 10, 1998, Johnson executed the warrant, arrested McCall at the Coppell Jail for the murder of Staci Terrill, and transported McCall to the Irving Jail.
Three days later, on October 13, 1998, Lynch contacted Johnson and advised him that the Institute could conduct DNA testing on the hairs found on Ms. Terrill's body. To compare the DNA of the hairs found on Ms. Terrill's body with McCall's DNA, Lynch explained that he would need a blood sample and additional hair samples from McCall. Therefore, on October 14, 1998, Johnson executed an Affidavit for Evidentiary Search Warrant. The affidavit contained the same factual recitations set forth in the arrest warrant affidavit, except it stated that three hairs found on Ms. Terrill's body were "microscopically identical" to McCall's hair. The affidavit also contained the following additional facts:
• Charles Lynch contacted Johnson on October 13, 1998, regarding DNA testing and stated that samples of McCall's blood and pubic hair were necessary to conduct a DNA comparison; and
• McCall's blood and pubic hair samples were also necessary for DNA comparisons in other murder investigations in Texas in which he was a suspect.
(Defs.' App. at 11-12.) Johnson presented the affidavit to the magistrate, who issued a search warrant. Johnson then took McCall to the Institute, where samples of McCall's blood and pubic hair were obtained. Later in the day, Lynch contacted Johnson and informed him that McCall's DNA did not match the DNA of the hairs found on Ms. Terrill's body. Accordingly, the murder charges against McCall for the murder of Ms. Terrill were dismissed pending further investigation, and McCall was released from the Irving Jail and transferred to the Dallas County Jail.
McCall filed suit against Johnson, the City, and the other defendants on October 12, 2000. In connection with his arrest for the murder of Staci Terrill, McCall asserts claims against Johnson for false arrest, false imprisonment, and civil conspiracy for arresting him, transporting him from the Coppell Jail to the Irving Jail, and holding him there until he was cleared of Ms. Terrill's murder. He asserts a claim against the City for failure to properly hire, train, and supervise Johnson. Johnson and the City seek summary judgment on all of McCall's claims against them. The parties have challenged the evidence presented in support of and in opposition to the summary judgment motion. The Court will consider first the preliminary evidentiary matters.
On August 28, 2001, the District Court dismissed McCall's other claims against Johnson as frivolous pursuant to 28 U.S.C. § 1915 (e)(2)(B) and 1915A(b). Although McCall's opposition brief alleges wrongful search and seizure in connection with the October 14, 1998 hair and blood samples, that claim is not before the Court.
II. Evidentiary Challenges
A. McCall's Motion to Strike
McCall moves to strike Johnson's Affidavit submitted in support of his summary judgment motion. The sole basis for McCall's motion to strike is that Johnson is not trustworthy because he allegedly made inconsistent statements in his October 9, 1998, affidavit in support of the arrest warrant and the October 14, 1998, affidavit in support of the search warrant. McCall points out that the October 9 affidavit states that McCall's head hairs were "microscopically similar" to three head hairs found on Ms. Terrill's body, while the October 14 affidavit states that the same hairs were "microscopically identical." The Court finds that this difference in wording has no bearing on the veracity of Johnson's affidavit in support of his motion for summary judgment. McCall has proffered no evidence to support his conclusory accusations that Johnson's affidavit in support of his motion for summary judgment is not trustworthy, and this inference cannot be drawn from a comparison of the wording of the affidavits in support of the arrest and search warrants. Accordingly, McCall's motion to strike should be denied.
B. Defendants' Objections
Defendants object to portions of McCall's affidavit, the affidavit of McCall's brother, Dean McCall, and to periodical materials which McCall submits in support of his opposition to Defendants' summary judgment motion. This Court has not relied upon this evidence in reaching its conclusions. Accordingly, the objections should be overruled as moot.
III. Summary Judgment Standard
Under Rule 56(c) of the Federal Rules of Civil Procedure, summary judgment is appropriate when the pleadings and record evidence show that no genuine issue of material fact exists and that, as a matter of law, the movant is entitled to judgment. Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994). The court looks to the substantive law to identify which facts are material. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). Only disputes about material facts will preclude the granting of summary judgment. Id.
In a motion for summary judgment, the burden is on the movant to prove that no genuine issue of material fact exists. Latimer v. Smithkline French Lab., 919 F.2d 301, 303 (5th Cir. 1990). If the non-movant bears the burden of proof at trial, the summary judgment movant need not support its motion with evidence negating the non-movant's case. Rather, the movant may satisfy its burden by pointing to the absence of evidence to support the non-movant's case. Id.; Little, 37 F.3d at 1075.
Once the movant meets its burden, the non-movant must show that summary judgment is not appropriate. Little, 37 F.3d at 1075 (citing Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986)). A metaphysical doubt with respect to material facts, conclusory allegations, unsubstantiated assertions, or a scintilla of evidence will not defeat summary judgment. Id. Rather, the non-moving party must present specific facts which demonstrate that there is a genuine issue for trial. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). To determine whether a genuine issue exists for trial, the court must view all of the evidence in the light most favorable to the non-movant, and the evidence must be sufficient such that a reasonable jury could return a verdict for the nonmovant. Munoz v. Orr, 200 F.3d 291, 302 (5th Cir. 2000).
IV. Analysis
A. Plaintiff's Claims Against Detective Johnson
McCall brings claims for false arrest and false imprisonment against Johnson under 42 U.S.C. § 1983. McCall alleges the following facts in his response to the motions for summary judgment:
Under § 1983, "[e]very person who, under color of any statute, ordinance, regulation, custom, or usage of any State . . . , subjects, or causes to be subjected, any citizen of the United States ... to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress . . . ." 42 U.S.C. § 1983.
McCall claims that he first became aware he was a suspect in an unsolved Coppell, Texas, homicide in 1998 when he was arrested for a probation violation on a deferred adjudication probation for a sexual assault he committed in Irving, Texas. The Coppell police questioned McCall on several occasions, and he agreed to cooperate. McCall let the Coppell police search his vehicle for trace evidence. On October 8 and 9, 1998, McCall agreed to give approximately 50 head hairs to assist in the investigation. On October 10, 1998, he went to the Coppell Police Station to answer more questions. McCall was arrested and charged with murder in Coppell and for another murder in Irving, Texas. McCall went with Johnson to the Institute to give hair and blood samples pursuant to a search warrant on October 14, 1998. A few hours later, the authorities dropped the murder charge in the Terrill case, released McCall from the Irving Jail, and transported him to the Dallas County Jail. No one contacted McCall again regarding the Irving murder charge.
1. Qualified Immunity
Qualified immunity protects government officials performing discretionary functions from suit and liability for civil damages to the extent their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known. Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). The doctrine protects "all but the plainly incompetent or those who knowingly violate the law." Malley v. Briggs, 475 U.S. 335, 341 (1986).
This determination is a matter of law for the court to decide. See Siegert, 500 U.S. at 232. Similarly, the questions whether the applicable law was clearly established at the time of Johnson's conduct and whether his conduct was objectively reasonable under the extant law are both questions of law for the court. See Williams v. Bramer, 180 F.3d 699, 703 (5th Cir. 1999) ("Objective reasonableness is a matter of law for the courts to decide, not a matter for the jury."). For these reasons, the court has not considered McCall's proffer of articles in his appendix. These articles do not "assist the trier of fact to understand the evidence or to determine a fact in issue." The court declines under Fed.R.Evid. 702 to admit them. Even assuming arguendo that the articles were admitted, this evidence would not alter the Court's conclusions regarding what rights were clearly established or whether Johnson's actions in seeking an arrest warrant were objectively reasonable.
To decide whether Johnson is entitled to qualified immunity, the threshold question is whether, taken in the light most favorable to McCall, Johnson's conduct violated a clearly established constitutional right. See Saucier v. Katz, 533 U.S. 194, 200 (2001 ) (citing Siegert v. Gilley, 500 U.S. 226, 232 (1991)). Assuming the allegations were established, if the defendant did not violate a constitutional right, the Court need inquire no further. Id On the other hand, if the plaintiff can show that the defendant has violated a constitutional right, the court must then determine whether the defendant's conduct was objectively reasonable in light of clearly established law at the time of the challenged conduct. Glenn v. City of Tyler, 242 F.3d 307, 312 (5th Cir. 2001). "Even if an official's conduct violates a constitutional right, he is entitled to qualified immunity if the conduct was objectively reasonable." McClendon v. City of Columbia, 258 F.3d 432, 438 (5th Cir. 2001) (footnote omitted). A defendant's acts are objectively reasonable unless all reasonable officials in the defendant's circumstances would have then known that the defendant's conduct violated the plaintiffs constitutional right. Thompson v. Upshur County, 245 F.3d 447, 457 (5th Cir. 2001).
Johnson moves for summary judgment on the basis that McCall has not alleged sufficient facts to overcome Johnson's qualified immunity defense. McCall claims that Johnson's affidavit in support of arrest warrant presented to Judge Sturman was deficient because the affidavit for a warrant did not contain a lab report showing how the hairs found on Ms. Terrill at the time of her autopsy were microscopically similar to the hairs McCall gave by consent. McCall claims the affidavit should have listed the number and points of comparison, as well as other details about the similarities. McCall further claims that the fact that Johnson stated in an affidavit in support of a search warrant a few days later that the hairs were microscopically identical (rather than microscopically similar) shows that Johnson made misrepresentations in the arrest warrant.
The right to be free from arrest without probable cause is a clearly established constitutional right. Mangieri v. Clifton, 29 F.3d 1012, 1016 (5th Cir. 1994). See Becky. Ohio, 379 U.S. 89, 91 (1964). Probable cause to arrest exists if the facts the officer knows and had reasonably trustworthy information about are sufficient to warrant a man of reasonable caution to believe the arrestee committed the offense. United States v. Preston, 608 F.2d 626, 632 (5th Cir. 1979). The determination of probable cause must be made, not with the logic of cold steel, but with a common sense view to the realities of everyday life. See Brinegar v. United States, 338 U.S. 160, 175 (1949)). No precise formula may be applied to determine probable cause; rather, probable cause exists when the totality of the facts and circumstances within a police officer's knowledge at the moment of arrest are sufficient to cause a reasonable person to conclude that the suspect committed the offense. United States v. Levine, 80 F.3d 129, 132 (5th Cir. 1996). See Vance v. Nunnery, 137 F.3d 270, 276 (5th Cir. 1998). The court must examine the totality of the circumstances to determine whether probable cause existed. Mendenhall v. Riser, 213 F.3d 226, 231 (5th Cir. 2000). The fact that a suspect is later proved innocent does not render an officer liable. Pierson v. Ray, 386 U.S. 547, 555 (1967). The arresting officer himself need not have personal knowledge of all of the facts. United States v. Lee, 962 F.2d 430, 435 (5th Cir. 1992). Rather, when officers have communicated, probable cause can rest upon the collective knowledge of the police. Id. "[P]robable cause is the "sum total of layers of information and the synthesis of what police have heard, what they know, and what they observed as trained officers.'" United States v. Shaw, 701 F.2d 367, 376 (5th Cir. 1983) (quoting United States v. Edwards, 577 F.2d 883, 895 (5th Cir. 1978) (en banc)). Probable cause is not to be determined by weighing "[e]ach individual layer of information" but by considering "the `laminated total' of the facts available[.]" Id.
A presumption of validity accompanies an affidavit that supports a search or arrest warrant. Franks v. Delaware, 438 U.S. 154, 171 (1978). An affidavit does not need to contain every detail the affiant knows, if the totality of the circumstances demonstrate probable cause. United States v. Brown, 941 F.2d 1300, 1304 (5th Cir. 1991). In applying for an arrest or search warrant, the affiant need not try the case in front of the magistrate, nor prove the suspect guilty beyond a reasonable doubt of every element of the crime at issue. See United States v. Ventresca, 380 U.S. 102, 107 (1965). Magistrate judges and courts must use common sense and realism to test and interpret affidavits for arrest or search warrants. United States v. May, 819 F.2d 531, 535 (5th Cir. 1987) (citing Ventresca, 380 U.S. at 108). A reviewing court should pay great deference to the magistrate's ultimate determination of probable cause. Spinelli v. United States, 393 U.S. 410, 419 (1969).
The standards for search and arrest warrants derive from the same clause of the Fourth Amendment. Hence, the analysis to determine the validity of either is essentially the same. See, e.g., Franks, 438 U.S. at 171.
The fact of a prior arrest may properly be considered by an officer in making a probable cause determination. United States v. Harris, 403 U.S. 573, 582-83 (1971). Microscopic hair examination alone does not provide a basis for a positive identification. Huffington v. Nuth, 140 F.2d 572, 582 (4th Cir. 1998). Nonetheless, at the time of McCall's arrest in 1998, human hair analysis by microscopic comparison was an accepted and reliable scientific method or technique, the results of which were routinely admitted at trial along with other circumstantial evidence such as blood comparisons. See e.g., McGrew v. State, 682 N.E.2d 1289 (Ind. 1997); Commonwealth v. Tarver, 345 N.E.2d 671 (1975); People v. Vettese, 489 N.W.2d 514 (1992); State v. White, 621 S.W.2d 287 (Mo. 1981); State v. Harrison, 357 N.W.2d 201 (1984); Bolin v. State, 960 P.2d 784 (1998); People v. Allweiss, 396 N.E.2d 735 (1979); Bryan v. State, 935 P.2d 359 n. 62 (Okla.Cr. 1997); State v. Lerch, 677 P.2d 678 (1984); State v. Lord, 822 P.2d 177 (1991). Moreover, in a close case, all doubts should be resolved in favor of the preference to be accorded warrants United States v. Phillips, 727 F.2d 392, 399 (5th Cir. 1983).
McCall would have the Court isolate the microscopically similar hair evidence from the totality of the facts that Johnson knew from his investigation. McCall claims the absence of a lab report or other information about the similarities of his hair to the victim's hair means Johnson violated his constitutional rights by seeking the warrant. This is not the case. Johnson did not rely only upon the hair evidence, and he was not required to do so. He was allowed to seek the warrant based upon the totality of the facts that he knew from his investigation and that had learned from other officers. Johnson had reasonable suspicions that McCall murdered Ms. Terrill. McCall had been convicted of a sexual assault in Irving and had been arrested for the Casler murder which occurred within a few months of the Terrill murder in nearby Coppell. Both corpses were discovered outdoors. The lab technician reported to Johnson that the hairs McCall voluntarily provided were microscopically similar to three hairs retrieved from Ms. Terrill's body during the autopsy. Based on Johnson's experience as a detective, he had probable cause to present the affidavit to an Irving judge, who made the determination there was probable cause to arrest McCall for Terrill's murder. The Court finds that based upon the totality of the circumstances, Johnson had probable cause to seek the warrant and did not violate McCall's constitutional rights. This ends the Court's inquiry with respect to qualified immunity. The Court need not consider whether reasonable officers could disagree with respect to whether there was probable cause to arrest McCall. Accordingly, McCall's suit for false arrest against Johnson may not proceed, and Johnson's motion for summary judgment should be granted.
2. Civil Conspiracy
McCall brings a claim for civil conspiracy against Johnson, alleging that Johnson and Detectives Peters and Scott of the Coppell Police Department conspired to falsely arrest and detain him in violation of his Fourth Amendment rights. To prevail on a § 1983 civil conspiracy claim, the plaintiff must show: (1) an agreement between the defendant and at least one other person acting under color of state law to commit an illegal act, and (2) an actual deprivation of the plaintiffs constitutional rights in furtherance of that agreement. Hicks v. Bexar County, Tex., 973 F. Supp. 653, 676 (W.D. Tex. 1997) (citations omitted). Johnson argues that he is entitled to summary judgment on this claim on the basis that there was no deprivation of McCall's constitutional rights because Johnson had probable cause to arrest McCall. Johnson also argues that summary judgment is proper because McCall can point to no evidence that Johnson, Peters and Scott had an agreement to violate McCall's constitutional rights. The Court agrees that each of these grounds provides a basis for summary judgment. The evidence in the record merely shows that Johnson and Peters exchanged information about McCall in furtherance of their respective investigations of the Terrill and Casler murders. Police officers routinely exchange information in the course of investigations. Thus, without more, McCall's response is insufficient to defeat summary judgment. No reasonable jury could find that Johnson violated McCall's constitutional rights or that there was an agreement between Johnson, Peters and Scott to violate McCall's constitutional rights. The District Court should grant summary judgment for Johnson on McCall's conspiracy claim.
McCall contends that when the IPD dropped the murder charge against him, Johnson told McCall, "I'm dropping the charges on you since Coppell, Texas isn't, and you aren't getting out anyway." (Pl.'s App. at Ex. 1, p. 2.) McCall argues that this is evidence of an agreement. The Court, however, will not consider this statement because it lacks any indicia of reliability. McCall presents this statement in his unswom affidavit. Although 28 U.S.C. § 1746 and Tex. Civ. Prac. Rem. Code § 132.001 allow inmates to use unsworn declarations as summary judgment evidence, such declarations must still meet certain requirements: they must be in writing and subscribed by the person making the declaration as true under penalty of perjury. Also, under § 1746, the declaration must be dated. McCall's affidavit is neither signed, dated nor made under penalty of perjury. Accordingly, the statements contained in the declaration are entitled to no weight. However, even if the Court were to consider Johnson's alleged statement, the Court finds it insufficient to raise a fact issue on an agreement to violate McCall's constitutional rights.
B. City of Irving
McCall brings a § 1983 claim against the City of Irving, alleging that the City engaged in a policy or custom of failing to adequately train its police officers, which led to the unlawful arrest and detention of McCall in violation of his Fourth Amendment rights. The City moves for summary judgment on the basis that McCall cannot point to any evidence of a municipal policy or custom that caused the constitutional injury alleged.
A city may be liable under § 1983 if the execution of one of its customs or policies deprives a plaintiff of his constitutional rights. Monell v. Department of Social Servs., 436 U.S. 658, 691, (1978). A city cannot be liable under § 1983, however, merely because it employed a tortfeasor. Id. at 694; Campbell v. City of San Antonio, 43 F.3d 973, 977 (5th Cir. 1995). According to the Supreme Court, "[t]he `official policy' requirement . . . make[s] [it] clear that municipality liability [under § 1983] is limited to action for which the municipality is actually responsible... that is, acts which the municipality has officially sanctioned or ordered." Pembaur v. City of Cincinnati, 475 U.S. 469, 479-80, (1986). The policy or custom must be "the moving force of the constitutional violation." Palmer v. City of San Antonio, 810 F.2d 514, 516 (5th Cir. 1987) (quoting Monell, 436 U.S. at 694). Although McCall has identified no official written policy regarding his § 1983 claim, such a policy may nevertheless exist in the form of an unwritten custom. The custom or policy must actually be that of the City's governing body before the City can be held liable. See Bennett v. City of Slidell, 728 F.2d 762, 767 (5th Cir. 1984) (en banc).
A single incident unaccompanied by supporting history will likely be an inadequate basis for inferring such a custom or usage unless the actor or actors involved had been given official policy-making authority. Worsham v. City of Pasadena, 881 F.2d 1336, 1339-40 (5th Cir. 1989) (citations omitted); see also Palmer, 810 F.2d at 516. "`[M]unicipal liability under § 1983 attaches where — and only where — a deliberate choice to follow a course of action is made from among various alternatives' by city policymakers." City of Canton v. Harris, 489 U.S. 378, 389 (1989) (quoting Pembaur, 475 U.S. at 483-84).
The Fifth Circuit defines "official policy" as:
1. A policy statement, ordinance, regulation, or decision that is officially adopted and promulgated by the municipality's lawmaking officers or by an official to whom the lawmakers have delegated policy-making authority; or
2. A persistent, widespread practice of city officials or employees, which, although not authorized by officially adopted and promulgated policy, is so common and well settled as to constitute a custom that fairly represents municipal policy. Actual or constructive knowledge of such custom must be attributable to the governing body of the municipality or to an official to whom that body had delegated policy-making authority. Actions of officers or employees of a municipality do not render the municipality liable under § 1983 unless they execute official policy as above defined.
Webster v. City of Houston, 735 F.2d 838, 841 (5th Cir.) (per curiam), aff'd in relevant part, 739 F.2d 993 (5th Cir. 1984) (en banc); Johnson v. Moore, 958 F.2d 92, 94 (5th Cir. 1992) (citing Bennett, 735 F.2d at 862).
McCall contends that the City is liable for Johnson's conduct because it engaged in a policy or custom of failing to adequately train its police officers, which resulted in the unlawful arrest and detention of McCall. McCall, however, fails to point to any evidence that the city's policymakers deliberately chose an inadequate training program. See City of Oklahoma City v. Tuttle, 471 U.S. 808, 823 (1985) ("[I]t is . . . difficult in one sense even to accept the submission that someone pursues a `policy' of `inadequate training,' unless evidence be adduced which proves that the inadequacies resulted from conscious choice — that is, proof that the policymakers deliberately chose a training program which would prove inadequate."); see also Harris, 489 U.S. at 388 ("[T]he inadequacy of police training may serve as the basis for § 1983 liability only where the failure to train amounts to deliberate indifference to the rights of persons with whom the police come into contact."); Palmer, 810 F.2d at 516. Thus, to survive summary judgment, McCall must point to evidence of persistent, repeated, and constant violations of constitutional rights by virtue of the City's alleged failure to adequately train its police officers. See Wassum v. City of Bellaire, 861 F.2d 453, 455 (5th Cir. 1988); see also Languirand v. Hayden, 717 F.2d 220, 227-28 (5th Cir. 1983).
In an attempt to show persistent, repeated and constant violations of constitutional rights by the IPD, McCall alleges that on April 14, 1998, Irving police officers wrongfully arrested him without a warrant. (Pl.'s Br. at 14-15.) McCall contends that the officers had time to obtain an arrest warrant, and were required to do so under the law, because McCall was "not about to escape." (Id at 15.) McCall also alleges that IPD Detective Monica Keeley misrepresented "several material facts" about that case to the Coppell Police Department. (Id) McCall's unsworn allegations, however, are not competent summary judgment evidence and will not be considered by the Court. See Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986) (pleadings are not summary judgment evidence). McCall, therefore, fails to point to any evidence of a persistent, widespread practice of constitutional violations.
McCall argues that he cannot effectively oppose summary judgment on this point because the Court granted Defendants' Motion for Protective Order on January 11, 2002. (Pl.'s Br. at 17.) While it is true that the Court protected Defendants Peters, Johnson and Scott from any and all discovery" based on their asserted defense of qualified immunity, the Court did not stay discovery with respect to the City. Thus, McCall's argument is meritless.
In sum, the Court finds that McCall has failed to adduce any evidence that would allow a reasonable jury to find that the City had a deliberate policy or custom of failing to adequately train its officers. The Court also concludes that McCall has failed to point to any evidence of persistent, repeated, and constant violations of constitutional rights. Because McCall has failed to direct the Court's attention to evidence in the record showing that the City engaged in a policy or custom of failing to adequately train its officers, an issue on which he will have the burden of proof at trial, the City's motion for summary judgment should be granted.
RECOMMENDATION
For the foregoing reasons, the Court recommends that: (1) Johnson's motion for summary judgment on McCall's claims for false arrest, false imprisonment, and civil conspiracy be GRANTED; (2) the City of Irving's motion for summary judgment be GRANTED; (3) Plaintiffs Motion to Strike Defendant Randall Johnson's Affidavits be DENIED; and (4) Defendants Randall Johnson and the City of Irving's Objections to Plaintiffs Evidence be OVERRULED as moot.