Opinion
SA-17-CA-1133-OLG (HJB)
04-15-2021
ERNEST TREVINO, Plaintiff, v. CARTER SMITH, AS DIRECTOR OF TEXAS PARKS AND WILDLIFE DEPARTMENT; AGENT DEREK IDEN; AGENT JOHN BRAUCHLE; AGENT MIKE DURAND; JONATHON GRAY; and KURT STERN, Defendants.
REPORT AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE
To the Honorable Chief United States District Judge Orlando L. Garcia:
This Report and Recommendation concerns the status of the above case, which has been referred to the undersigned for consideration of pretrial matters pursuant to 28 U.S.C. § 363(b). (See Docket Entry 7.) Before the Court are the Motion to Dismiss filed by Defendants Brauchle, Durand, Grey, Iden, and Smith (Docket Entry 102), and the Motion to Dismiss for Failure to State a Claim filed by Defendant Stern (Docket Entry 113). For the reasons set out below, I recommend that Defendant Stern's Motion to Dismiss (Docket Entry 113) be GRANTED, and that the Motion to Dismiss filed by Defendants Brauchle, Durand, Gray, Iden, and Smith (Docket Entry 102) be GRANTED IN PART and DENIED IN PART.
I. Jurisdiction.
Plaintiff alleges violations of 42 U.S.C. § 1983 and a related state law claim for malicious prosecution. (Docket Entry 101.) The Court has original jurisdiction over his federal claims pursuant to 28 U.S.C. § 1331 and supplemental jurisdiction over his state law claims pursuant to 28 U.S.C. § 1367. I have authority to issue this Report and Recommendation pursuant to 28 U.S.C. § 636(b).
II. Background.
For purposes of Defendants' motions to dismiss, Plaintiff's allegations are taken as true. Villarreal v. Wells Fargo Bank, N.A., 814 F.3d 763, 766 (5th Cir. 2016).
Plaintiff's suit arises out of a number of indictments brought against Plaintiff in state court in 2017. (Docket Entry 101, at 3.) All of the indictments have been dismissed, or resulted in convictions that have since been overturned.
Plaintiff contends that all the state charges against him were false; he claims that two of the Defendants Texas Department of Parks and Wildlife ("TDPW") Agents Iden and Brauchle, were motivated by animus against him stemming in part from a complaint he brought with Internal Affairs against Iden, and from open records requests he made for TDPW policies and procedures and for Iden's training records and personnel records. (Docket Entry 101, at 13.) Plaintiff claims that, partially in retaliation for his filings and requests Defendants improperly solicited prosecutions against Plaintiff. (Id. at 7-8, 12.) He alleges that Defendant "Iden would speak with witnesses first without recording or documenting his contacts; thereafter, if the witness gave damaging information, Iden would then re-interview and record his interview; and when he would record his new interview, he would strongly suggest to the witness what to say to support prosecuting Plaintiff." (Id. at 11.)
Additionally, Plaintiff argues that Defendants "[t]argeted Plaintiff's son for a prosecution which was ultimately dismissed." (Id. at 12-13.)
The first indictment sought against Plaintiff was for a hunting violation; it was charged as a felony, when, according to Plaintiff, the alleged conduct would at most amount to a Class C misdemeanor. (Docket Entry 116, at 6.) The charge was ultimately dismissed. (Id.) One of the witnesses Defendant Iden relied on in pursuing this indictment was Bobby Wied. (Docket Entry 101, at 15-16.) Plaintiff alleges that Wied later recanted his allegations, and Defendant Iden failed to report this while pursuing his investigation. (Id. at 16.) Iden allegedly also failed to report that Wied had previously done free taxidermy work for him and that he therefore owed Wied a favor—this was the basis for the internal affairs complaint Plaintiff filed against Defendant Iden. (Id. at 13.) During the internal affairs investigation, Iden claimed that Wied "lack[ed] veracity," and that he was "shady and a liar"; Iden also failed to report these views when pursuing the charges against Plaintiff. (Id. at 9.)
The second and third indictments Defendants Iden and Brauchle sought against Plaintiff were on alleged forgery charges. The first of these arose out of a barter made between Plaintiff and Defendant Stern. (Docket Entry 101, at 3-7.) Plaintiff initially posted on the Craigslist website, seeking to trade hunting rights on a piece of land he leased in exchange for a truck. (Id. at 3.) Defendant Stern responded to the post, offering instead to trade a jet ski and an undisclosed amount of money. (Id.) Plaintiff and Stern reached an agreement, and Stern transferred title to the jet ski to Plaintiff, although he did not sign the certificate of title. (Id. at 4.) Plaintiff later traded this jet ski to a third party in exchange for a truck. (Id. at 5.) Based on these facts, Plaintiff was convicted of forgery, but the conviction was overturned by the court of appeals because it found that an essential element of the offense had not been proven. (Docket Entry 116, at 7-8 citing State of Texas v. Ernest Trevino, 608 S.W.3d 344, 347 (Tex. App.—Houston [1st Dist.] 2020, no pet.).) Plaintiff alleges that, among other things, "Stern gave a written statement to Iden that he had attempted three times to transfer title of the jet ski to Plaintiff; thus, Iden knew that Stern had never signed a sworn statement indicating his wish to file charges for forgery against Plaintiff, and Iden concealed this fact from prosecutors." (Id. at 4.)
The other forgery charge Defendants pursued against Plaintiff, involved a separate application for Texas title for a truck. (Docket Entry 101, at 17.) In that case, the indictment alleged that Plaintiff signed the title application without the legal authority of the owner of the truck. (Id. at 18.) Plaintiff contends, however, that the truck he purchased and attempted to register was relinquished and sold by the original owner for scrap after it "suffered severe mechanical failure." (Id. at 18.) The truck was purchased and sold by several different individuals before being repaired by Plaintiff and sold to another third party. (Id. at 18-19.) This indictment was likewise dismissed. (Docket Entry 102, at 8.)
B. Procedural Background.
Proceeding pro se, Plaintiff filed suit against numerous Defendants on November 6, 2017. (Docket Entry 1.) At the time, state criminal charges were still pending against Plaintiff; accordingly, the Court stayed the case pending resolution of the charges. (See Docket Entry 45.) Following the resolution of Plaintiff's related criminal matters, the stay was lifted and counsel was appointed to represent Plaintiff. (Docket Entries 92, 98.)
Plaintiff's appointed counsel filed an amended complaint. (Docket Entry 101.) Two defendants moved for dismissal (Docket Entry 108), which was granted without opposition (Docket Entry 112). The remaining named Defendants also moved to dismiss (Docket Entries 102, 113); Plaintiff responded (Docket Entries 116, 117), and Defendants replied (Docket Entry 118).
III. Analysis.
Plaintiff brings claims against Defendants Kurt Stern, Carter Smith, Mike Durand, Jonathon Gray, John Brauchle, and Derek Iden. The first four of these Defendant have sought dismissal without objection by Plaintiff. (See Docket Entries 102, 113, 116.) Therefore, these Defendants should be dismissed from the case.
Defendants Brauchle and Iden likewise seek dismissal, for failure to state a claim for relief under Federal Rule of Civil Procedure 12(b)(6). They argue for dismissal based, among other things, on the doctrine of qualified immunity. These arguments are addressed below.
A. The Rule 12(b)(6) Standard.
Rule 12(b)(6) authorizes the dismissal of a cause of action in a complaint when it fails "to state a claim upon which relief can be granted." FED. R. CIV. P. 12(b)(6). When considering a motion to dismiss for failure to state a claim, the "court accepts 'all well-pleaded facts as true, viewing them in the light most favorable to the plaintiff.'" In re Katrina Canal Breaches Litig., 495 F.3d 191, 205 (5th Cir. 2007) (quoting Martin K. Eby Constr. Co. v. Dallas Area Rapid Transit, 369 F.3d 464, 467 (5th Cir. 2004)).
For a claim to survive a motion to dismiss, the plaintiff must plead "enough facts to state a claim to relief that is plausible on its face." Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007). "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for misconduct alleged." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). A complaint must contain "more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do." Twombly, 550 U.S. at 555 (2007). "Factual allegations must be enough to raise a right to relief above the speculative level." Id.
When, as in this case, a motion to dismiss raises the defense of qualified immunity, the plaintiff "must plead specific facts that both allow the court to draw the reasonable inference that the defendant is liable for the harm . . . alleged and that defeat a qualified immunity defense with equal specificity." Zapata v. Melson, 750 F.3d 481, 485 (5th Cir. 2014) (quoting Backe v. LeBlanc, 691 F.3d 645, 648 (5th Cir. 2012)).
B. Plaintiff's Claims Against Defendants Iden and Brauchle.
Construing the pleadings liberally, Plaintiff appears to bring § 1983 claims for retaliatory prosecution and wrongful prosecution without due process, as well as related state law claims. Each of these issues will be addressed in turn.
1. Plaintiff's § 1983 Claims.
Defendants Iden and Brauchle argue that Plaintiff's claims should be dismissed because they are entitled to qualified immunity. (Docket Entry 102, at 14.) "The doctrine of qualified immunity protects government officials from civil damages liability when their actions could reasonably have been believed to be legal." Morgan v. Swanson, 659 F.3d 359, 370 (5th Cir. 2011) (en banc). To defeat a claim of qualified immunity, the plaintiff has the burden to demonstrate the inapplicability of the defense. Atteberry v. Nocona Gen. Hosp., 430 F.3d 245, 253 (5th Cir. 2005), abrogated on other grounds by Kingsley v. Hendrickson, 576 U.S. 389, 400 (2015). Accordingly, at the pleadings stage, a plaintiff must allege "(1) that the official violated a statutory or constitutional right, and (2) that the right was clearly established at the time of the challenged conduct." Whitley v. Hanna, 726 F.3d 631, 638 (5th Cir. 2013) (internal quotation marks omitted) (quoting Ashcroft v. al-Kidd, 563 U.S. 731, 735 (2011)). A right is clearly established when "it would be clear to a reasonable officer that his conduct was unlawful in the situation he confronted." Jones v. Lowndes Cnty., Miss., 678 F.3d 344, 351 (5th Cir. 2012).
In this case, Plaintiff makes two related § 1983 claims, for retaliatory prosecution in violation of the First Amendment, and for wrongful prosecution in violation of the Fourth and Fourteenth Amendments. For the reasons set out below, Plaintiff's retaliatory prosecution claim appears to lack an essential element; accordingly, the motion to dismiss on that claim should be granted, but Plaintiff should be granted an opportunity to amend the complaint. Plaintiff's wrongful prosecution claim may go forward at this time.
a. Plaintiff's retaliatory prosecution claim.
Plaintiff argues that Defendants Iden and Brauchle violated his rights under the First Amendment by seeking indictments in retaliation for complaints and open records requests he filed against them. (See Docket Entry 116, at 20.) Fifth Circuit precedent clearly establishes that arrest and indictment in retaliation for protected speech violate the First Amendment. See Keenan v. Tejeda, 290 F.3d 252, 260 (5th Cir. 2002) (retaliatory criminal prosecutions may constitute actionable First Amendment violation); cf. Colson v. Grohman, 174 F.3d 498 (5th Cir. 1999) (false accusations and attempts to prosecute city councilor were not retaliatory because they did not result in arrest or indictment).
A First Amendment retaliation claim requires that (1) the plaintiff was engaged in constitutionally protected activity, (2) the defendant's actions caused him to suffer an injury that would chill a person of ordinary firmness from continuing to engage in that activity, and (3) the defendant's adverse actions were substantially motivated by the plaintiff's exercise of constitutionally protected conduct. Keenan, 290 F.3d at 258. A retaliatory prosecution claim also requires a plaintiff to plausibly allege a lack of probable cause supporting his prosecution. Curtis v. Sowell, 761 F. App'x 302, 305 (5th Cir. 2019).
Plaintiff alleges that he was engaged in protected activity in the form of filing complaints and open records requests against Defendants. (See Docket Entry 101, at 6.) Cf. City of Houston, Tex. v. Hill, 482 U.S. 451, 462-63 (1987) ("The freedom of individuals . . . to oppose or challenge police action without thereby risking arrest is one of the principal characteristics by which we distinguish a free nation from a police state."). Plaintiff also alleges that he was indicted, tried, and convicted on at least one of the charges against him (Docket Entry 101, at 5-6), which would deter a person of ordinary firmness from continuing to engage in the protected conduct. See Keenan, 290 F.3d at 259 (the cost and effort of facing trial without probable cause would chill an ordinary person). And by alleging dismissal of the charges and acquittal, Plaintiff has plausibly alleged that probable cause was lacking to convict him.
What is unclear from Plaintiff's pleadings is whether his protected activity—filing complaints and open records requests—provided the substantial motivation for the prosecutions. (See Docket Entry 101, at 10). Plaintiff alleges that his open records requests and complaints were made "[b]efore any indictment was returned against" him (id.), and he argues in response to the motion to dismiss that he had "at least thirteen communications about Iden and Brauchle's misconduct before his first indictment" (Docket Entry 116, at 20). However, investigations and prosecutions normally begin before an indictment is returned; Plaintiff's pleadings do not indicate whether his protected activity predated any initiation of prosecution. Moreover, substantial motivation cannot necessarily be inferred merely from timing. Plaintiff cites authority to suggest that timing can support a presumption of vindictiveness, but the cases on which he relies arose in a due process context, not a First Amendment context. (See Docket Entry 116, at 20.)
In briefing, Plaintiff provides a more thorough timeline of his communication with TDPW, beginning on January 24, 2017 and continuing through February 8, 2021. (Docket Entry 116, at 16-20.) According to Plaintiff, the first indictment was returned against him on September 15, 2017. (Id. at 5.)
As the pleadings currently stand, Plaintiff's retaliatory prosecution claim does not include sufficient facts to determine whether his protected activity was the cause of the criminal investigations and prosecutions. Therefore, Plaintiff's retaliatory prosecution claim should be dismissed without prejudice, and Plaintiff should be allowed chance to amend the complaint to state the facts showing which, if any, of the indictments against him were retaliatory.
b. Plaintiff's wrongful prosecution claim.
Defendants contend that Plaintiff has not stated a claim for wrongful prosecution because there is no cause of action for malicious prosecution in the Fifth Circuit. (Docket Entry 102, at 14 (citing Morgan v. Chapman, 969 F.3d 238, 246 (5th Cir. 2020).) Defendants are correct in so far as the claim for "malicious prosecution" was officially abolished in 2003 in Castellano v. Fragozo, 352 F.3d 939, 945 (5th Cir. 2003) ("[W]e conclude that no such freestanding constitutional right to be free from malicious prosecution exists."). But this does not support dismissal of Plaintiff's § 1983 claim. As the Fifth Circuit has explained, while "malicious prosecution and abuse of process are torts, not constitutional violations[; t]he facts underlying these tort allegations may constitute unconstitutional searches, seizures, or violations of due process." Morgan, 969 F.3d at 245. The Court went on to suggest different types of constitutional violations which might cover the applicable conduct: a claim may be framed as a wrongful seizure claim under the Fourth Amendment, or a due process claim. Id. at 249-50.
Following Castellano, the Fifth Circuit has continued to uphold claims with similar underlying facts, referring to them in a variety of ways, including in terms that are akin to malicious prosecution claims. See, e.g., Garcia v. San Antonio, Texas, 784 F. App'x 229, 232 (5th Cir. 2019) ("[C]laims for detention pursuant to the 'wrongful institution of legal process' are more akin to malicious prosecution than false arrest."); Curtis, 761 F. App'x at 304 (There is a cognizable claim for arrest and prosecution without probable cause.); Winfrey v. Rogers, 901 F.3d 483, 491-92 (5th Cir. 2018) ("[T]he Fourth Amendment is the appropriate constitutional basis for Junior's claim that he was wrongfully arrested due to the knowing or reckless misstatements and omissions in . . . affidavit[s.]").
Plaintiff's complaint asserts violations of his "constitutional and statutory right to be free of prosecution manufactured without probable cause." (Docket Entry 101, at 20.) In briefing, he asserts that Defendants' conduct violated due process, and he also mentions the Fourth Amendment. (Docket Entry 116, at 20.) While Plaintiff's complaint could be more explicit on the constitutional basis for this claim, Plaintiff need not correctly specify all legal theories on which his complaint is based, so long as he has alleged facts upon which relief can be granted. McManus v. Fleetwood Enterprises, Inc., 320 F.3d 545, 551 (5th Cir. 2003).
By asserting the facts described above, Plaintiff has made sufficient allegations to give rise to a cognizable claim upon which relief could be granted, either under the Fourth Amendment or the Due Process Clause of the Fourteenth Amendment. Cf. Winfrey, 901 F.3d at 492-95 ("Junior was arrested through the wrongful institution of legal process: an arrest pursuant to a warrant, issued through the normal legal process, that is alleged to contain numerous material omissions and misstatements."); McLin v. Ard, 866 F.3d 682, 689 (5th Cir. 2017) (creating "false and misleading" affidavits for the purposes of seeking arrests warrants constituted Fourth Amendment violation); Cole v. Carson, 802 F.3d 752 (5th Cir. 2015) (there is a "due process right not to have police deliberately fabricate evidence and use it to frame and bring false charges against a person"), cert. granted, judgment vacated sub nom. Hunter v. Cole, 137 S. Ct. 497 (2016), opinion reinstated in part, 935 F.3d 444 (5th Cir. 2018) (en banc); Castellano, 352 F.3d at 942 ("[A] state's manufacturing of evidence and knowing use of that evidence . . . to obtain a wrongful conviction deprives a defendant of his long recognized right to a fair trial secured by the Due Process Clause" of the Fourteenth Amendment.).
Although not asserted by Defendants, the undersigned also considers the potentially applicable defense of the independent intermediary doctrine. Generally, if an independent intermediary like a magistrate or a grand jury authorizes an arrest or indictment, then the initiating party cannot be liable for the resulting prosecution. See Shaw v. Villanueva, 918 F.3d 414, 417 (5th Cir. 2019). An intermediary's decision "breaks the chain of causation . . . insulating the initiating party." McLin, 866 F.3d at 689. The initiating party may even have malicious intent, so long as an intermediary's action was truly independent. See Shaw, 918 F.3d at 417. However, there is an exception to the independent intermediary doctrine when the omission or deliberate misrepresentation of information has tainted the decision of the intermediary. Id. To fall within this exception a plaintiff must plead facts to demonstrate that the official's malicious motive led the official to withhold relevant information or otherwise misdirect the independent intermediary by omission or commission. McLin, 866 F.3d at 689.
Plaintiff's complaint includes allegations that Defendants secured indictments against him by "withholding and misrepresenting evidence to the prosecution." (Docket Entry 101, at 21.) Specifically, he alleges that Defendants Iden and Brauchle withheld known information about the veracity of witness Wied, whose statements they relied on to obtain search warrants and otherwise investigate Plaintiff. (Id. at 9.) In addition, he alleges that Defendants knew Wied had supplied them with "false information shortly before having the warrant signed because Wied recanted his claim about deadly conduct by Plaintiff." (Id.) Plaintiff also claims that Defendants Iden and Brauchle had written statements from Defendant Stern that he intended to transfer title of his jet ski to Plaintiff, and that they had concealed these statements from prosecutors. (Id. at 4.) Plaintiff has also alleged that Defendant's malicious motives led them to withhold relevant information from prosecutors and the grand jury, which otherwise would have served as an independent intermediary. See Curtis, 761 F. App'x at 305.
A government official falsifying or withholding information in order to convince prosecuting authorities to press charges taints an intermediary's decision. See McLin, 866 F.3d at 690-91; Pierce v. Gilchrist, 359 F.3d 1279, 1293 (10th Cir. 2004). Based on the previously described caselaw, Plaintiff's allegations plausibly state a constitutional violation that is clearly established. See supra. Therefore, Plaintiff's wrongful prosecution claim should be allowed to go forward at this time.
Moreover, the Fifth Circuit has held that officials who lie to investigating officers or the court in order to get someone charged with a crime or secure warrants are not entitled to immunity. See Cole, 802 F.3d at 775-76.
2. Plaintiff's State Law Claims.
Although Plaintiff's § 1983 wrongful prosecution claim should be allowed to go forward, he also appears to allege a state-law claim for "Malicious Prosecution." (Docket Entry 101, at 21-22.) To the extent that Plaintiff is asserting such a claim, it must be dismissed.
Section 101.106(f) of the Texas Tort Claims Act ("TTCA") states as follows:
If a suit is filed against an employee of a governmental unit based on conduct within the general scope of that employee's employment and if it could have been brought under this chapter against the governmental unit, the suit is considered to be against the employee in the employee's official capacity only. On the employee's motion, the suit against the employee shall be dismissed unless the plaintiff files amended pleadings dismissing the employee and naming the governmental unit as defendant on or before the 30th day after the date the motion is filed.TEX. CIV. PRAC. & REM. CODE ANN. § 101.106(f) (West 2016). Any tort claim against the government is brought "under" the TTCA for purposes of § 101.106, regardless of whether the TTCA expressly waives immunity for that particular tort. Franka v. Velasquez, 332 S.W.3d 367, 375 (Tex. 2011). The TTCA bars suits against a government employee in his individual capacity if he was acting within the scope of his employment. Id. at 381.
Defendants contend that "all complained of actions by Defendant Iden were conducted within the scope of his employment with the Department, and Plaintiff's malicious prosecution claims 'could have been brought against the government unit [, i.e. the Department,] under the TTCA.'" (Docket Entry 102, at 17.) Defendants are correct: all the conduct alleged by Plaintiff occurred within the scope of Defendants' employment. (See Docket Entry 101, at 21-22.) Therefore, any state law malicious prosecution claim must be dismissed.
IV. Recommendation.
For the reasons set out above, I recommend that Defendant Stern's Motion to Dismiss (Docket Entry 113) be GRANTED, and the claims against Stem be DISMISSED WITH PREJUDICE. I further recommend that the Motion to Dismiss filed by Defendants Brauchle, Durand, Gray, Iden, and Smith (Docket Entry 102) be GRANTED IN PART and DENIED IN PART. The motion should be GRANTED as to Defendants Durand, Grey, and Smith, and the claims these Defendants DISMISSED WITH PREJUDICE. It should be GRANTED IN PART and DENIED IN PART as to Defendants Brauchle and Iden. As to Plaintiff's state claims against Brauchle and Iden, the motion should be GRANTED, and the claims DISMISSED WITH PREJUDICE. As to Plaintiff's § 1983 retaliatory prosecution claim against these two Defendants, the motion should be GRANTED, the claims DISMISSED WITHOUT PREJUDICE, and Plaintiff should be given the opportunity to amend his complaint. As to Plaintiff's § 1983 wrongful prosecution claim against these two Defendants, the motion should be DENIED.
V. Instruction for Service and Notice for Right to Object.
The United States District Clerk shall serve a copy of this Report and Recommendation on all parties by either (1) electronic transmittal to all parties represented by attorneys registered as a "filing user" with the clerk of court, or (2) by mailing a copy to those not registered by certified mail, return receipt requested.
Written objections to this Report and Recommendation must be filed within fourteen (14) days after being served with a copy of same, unless this time period is modified by the district court. 28 U.S.C. § 636(b)(1); FED. R. CIV. P. 72(b). The party shall file the objections with the clerk of the court, and serve the objections on all other parties. A party filing objections must specifically identify those findings, conclusions or recommendations to which objections are being made and the basis for such objections; the district court need not consider frivolous, conclusive or general objections. A party's failure to file written objections to the proposed findings, conclusions and recommendations contained in this report shall bar the party from a de novo determination by the district court. Thomas v. Arn, 474 U.S. 140, 149-52 (1985); Acuña v. Brown & Root, Inc., 200 F.3d 335, 340 (5th Cir. 2000). Additionally, failure to file timely written objections to the proposed findings, conclusions and recommendations contained in this Report and Recommendation shall bar the aggrieved party, except upon grounds of plain error, from attacking on appeal the unobjected-to proposed factual findings and legal conclusions accepted by the district court. Douglass v. United Servs. Auto. Ass'n, 79 F.3d 1415, 1428-29 (5th Cir. 1996) (en banc).
SIGNED on April 15, 2021.
/s/_________
Henry J. Bemporad
United States Magistrate Judge