Kenneth Cuadra v. Houston Independent Sch Dist, et al

Filing

PUBLISHED OPINION FILED. [09-20715 Affirmed ] Judge: EHJ , Judge: TMR , Judge: CH Mandate pull date is 12/08/2010 [09-20715]

Kenneth Cuadra v. Houston 09-20715 Sch Dist, et al00511296128 Case: Independent Document:

Page: 1 Date Filed: 11/17/2010

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IN THE UNITED STATES COURT OF APPEALS United States Court of Appeals FOR THE FIFTH CIRCUIT Fifth Circuit FILED
November 17, 2010 N o . 09-20715 Lyle W. Cayce Clerk

K E N N E T H CUADRA P la in t iff - Appellant v. H O U S T O N INDEPENDENT SCHOOL DISTRICT; CAROL WICHMANN; M A R M I O N DAMBRINO; BILLY ALDRICH; BETH BONNETTE; MELBA M A R T I N ; ANNE PATTERSON D e fe n d a n t s - Appellees

A p p e a l from the United States District Court for the Southern District of Texas

B e fo r e JONES, Chief Judge, and REAVLEY and HAYNES, Circuit Judges. H A Y N E S , Circuit Judge: K e n n e t h Cuadra ("Cuadra") appeals a grant of summary judgment for the H o u s t o n Independent School District ("HISD") and several HISD personnel (c o lle c t iv e ly "Appellees") on his 42 U.S.C. § 1983 claims. Cuadra filed suit a g a in s t the Appellees after he was indicted and subsequently arrested in c o n n e c t io n with a falsified student drop-out report sent to the State of Texas by S h a r p s t o w n High School ("SHS"). Because we find that Cuadra failed to raise a genuine issue of material fact as to any of his constitutional claims, we A F F IR M the district court's grant of summary judgment for the Appellees.

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No. 09-20715 I . Facts and Procedural History C u a d r a served as a network specialist at SHS until August 2004. As part o f his job responsibilities, Cuadra played a role in the school's required annual r e p o r t in g of student drop-out data to the State of Texas. SHS uses a computer p r o g r a m known as SASI to maintain official records of student data, including s t u d e n t drop-out information. Once data is entered into the SASI program, it c a n be uploaded to HISD's Public Education Information Management System (" P E I M S " ). Data in the PEIMS system is then transferred to the Texas

E d u c a t io n Agency ("TEA") via a server known as TEA Edit Plus. Cuadra and M e lb a Martin ("Martin"), an attendance clerk at SHS, had access to SASI to edit d a t a for "leavers," students who were enrolled or attended the school at some p o in t during the previous school year, but did not re-enroll in the fall. Martin w a s responsible for inputting or editing "leaver codes," numbers referencing the r e a s o n why a student left school. Some of these codes indicated that the student q u a lifie d as a "drop-out," while other codes gave other reasons for leaving, such a s a family move to another city. Only Cuadra could upload the student dropo u t data to the PEIMS program, and this data was periodically sent to the TEA. Cuadra claims that, on October 22, 2002, Assistant Vice Principal M a r m io n Dambrino ("Dambrino") and Principal Carol Wichmann ("Wichmann") t o ld him to randomly delete ten to fifteen names from the student drop-out list in anticipation of a meeting with General Superintendent Kaye Stripling (" S t r ip lin g " ).1 Cuadra admitted that he removed some names from the list on t h e night of October 22nd. Computer log-in information indicated that Cuadra's I D was the only one used to log on to the system between the evening of October 2 2 n d and the afternoon of October 23rd. During this time frame, the SHS

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Dambrino and Wichman dispute Cuadra's account.

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No. 09-20715 s t u d e n t data report changed from listing thirty drop-outs to listing zero dropo u ts .2 S o m e t im e after making the changes to the student drop-out data, Cuadra c la im e d that he accessed the SASI program again and changed the information b a c k . Cuadra alleged that Martin later changed the drop-out data again to show z e r o drop-outs. Cuadra alleged that the Appellees knew the drop-out numbers w e r e incorrect and tried to cover up their part in the false reporting by pinning r e s p o n s ib ilit y for it on him. I n February of 2003, a local news station reported that SHS had falsified it s student drop-out data. Soon after, Billy Aldrich ("Aldrich"), a member of the H I S D Department of Professional Standards, commenced an investigation into t h e matter at the request of Anne Patterson ("Patterson"), Superintendent of H I S D 's West District. During the course of his investigation, Aldrich spoke to H I S D and SHS employees and interviewed Cuadra twice. In both interviews w it h Aldrich, Cuadra did not disclose that anyone asked him to change the dropo u t data. In May 2003, Assistant Principal Robert Kimball ("Kimball") wrote a letter t o Lester Blizzard ("Blizzard"), a Harris County Assistant District Attorney, and a lleg ed that SHS administrators, including several of the named Appellees, were r e s p o n s ib le for the false drop-out numbers. Blizzard contacted Aldrich after r e c e iv in g Kimball's letter and requested a copy of Aldrich's completed report, w h ic h Aldrich sent in June 2003. Aldrich's report concluded that Cuadra

k n o w in g ly changed student leaver codes without authorization. Ultimately, B liz z a r d decided not to prosecute Cuadra.

The last student data report, printed at 4:39 p.m. on October 23rd, served as the foundation for Cuadra's subsequent criminal indictment for knowingly making a false alteration to a government record.

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No. 09-20715 A fte r Cuadra initiated an internal grievance, complaining that he was the fa ls e target of Aldrich's investigation, HISD decided to hire outside counsel, the l a w firm of Rusty Hardin and Associates, to conduct an independent in v e s t ig a t io n into the events. The findings of two attorneys from the firm

(" H a r d in report") confirmed the allegation that Cuadra knowingly changed le a v e r codes listed on the PEIMS student drop-out report sent to the TEA w it h o u t authorization on October 22nd or October 23rd. After reviewing the H a r d in report, HISD's Deputy Superintendent Abe Saavedra ("Saavedra") d e n ie d Cuadra's grievance and recommended that the report be sent to the H a r r is County District Attorney's office for an independent determination of p o t e n t ia l criminal liability of any individual involved. Cuadra was again rea s s i g n e d , this time to the HISD Bus Barn. Cuadra lost another grievance r e la t e d to this re-assignment and eventually resigned in August 2004. O n October 7, 2005, Tess Buess ("Buess"), District Attorney Blizzard's r e p la c e m e n t , sought and obtained a grand jury indictment against Cuadra for k n o w in g ly making a false alteration to a government record.3 Cuadra was a r r e s t e d and released on bond following the indictment, which was eventually q u a s h e d . However, another grand jury subsequently re-indicted Cuadra in May 2006. A few days after a conversation with Cuadra's defense attorney in October 2 0 0 6 , Buess dismissed the second indictment against Cuadra and issued a press r e le a s e on the same day. Cuadra contends that Buess dismissed the indictment b e c a u s e of a document she received from Cuadra's defense attorney that Cuadra

That indictment against Cuadra stated that on or about October 22, 2002, Cuadra unlawfully and knowingly made a false alteration of a governmental record, namely a public school record (Exhibit A) and Cuadra's actions were done with intent to defraud and harm another. Exhibit A was the PEIMS Data Review Drop-out Roster printed on October 23, 2002 at 4:39 p.m.

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No. 09-20715 d e e m s the "smoking gun."4 Cuadra argues that at least one of the Appellees p o s s e s s e d this document and did not disclose it to Buess prior to his indictments. Cuadra filed the instant 42 U.S.C. § 1983 suit in federal district court. The Appellees moved for summary judgment on all of Cuadra's claims, and C u a d r a then moved for partial summary judgment on his First and Fourteenth A m e n d m e n t claims, the only claims that are the subject of this appeal. Ultimately, the district court dismissed Cuadra's action with prejudice and d e n ie d Cuadra's post-judgment motion. This timely appeal followed. I I . Standard of Review T h e Fifth Circuit reviews a grant of summary judgment de novo, applying t h e same standard as the district court. Shields v. Twiss, 389 F.3d 142, 149 (5th C ir . 2004). Summary judgment is proper "if the pleadings, the discovery and d is c lo s u r e materials on file, and any affidavits show that there is no genuine is s u e as to any material fact and that the movant is entitled to judgment as a m a t t e r of law." FED. R. CIV. P. 56(c). This court "construes all facts and

in fe r e n c e s in the light most favorable to the nonmoving party when reviewing g r a n t s of motions for summary judgment." Murray v. Earle, 405 F.3d 278, 284 (5 t h Cir. 2005). Where the burden of production at trial ultimately rests on the n o n m o v a n t , "the movant must merely demonstrate an absence of evidentiary s u p p o r t in the record for the nonmovant's case." Shields, 389 F.3d at 149. Then, " t h e nonmoving party must come forward with `specific facts showing that there is a genuine issue for trial.'" Id. (citing FED. R. CIV. P. 56(e)). "An issue is

`g e n u in e ' if the evidence is sufficient for a reasonable jury to return a verdict for

This document is a portrait-printed roster of the names of thirty students alongside six columns of data with two sets of handwriting on it. Dambrino's handwriting is on the bottom of the document. Cuadra alleged that Martin's handwriting was the other set. He asserts that this document proves his innocence because the handwritten information matches the codes entered for each student that eventually resulted in a zero drop-out report to the Texas Education Agency. The document has no date on it.

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No. 09-20715 t h e nonmoving party." Hamilton v. Seque Software, Inc., 232 F.3d 473, 477 (5th C ir . 2000). "A fact issue is `material' if its resolution in favor of one party might a ffe c t the outcome of the lawsuit under governing law." Id. The Fifth Circuit m a y "affirm a grant of summary judgment on any grounds supported by the r e c o r d and presented to the [district] court." Hernandez v. Velasquez, 522 F.3d 5 5 6 , 560 (5th Cir. 2008). III. Discussion C u a d r a challenges the summary judgment entered on his Fourth and F o u r t e e n t h Amendment claims.5 We address each issue in turn. A . Cuadra's Fourth Amendment Claims 1 . No Free-Standing Malicious Prosecution Claim C u a d r a alleges that the Appellees violated his Fourth Amendment rights b y intentionally withholding information and manipulating evidence to procure h is indictment. To the extent that Cuadra alleges that the Appellees violated his c o n s t it u t io n a l rights by engaging in malicious prosecution, that argument is fo r e c lo s e d by our decision in Castellano v. Fragozo, 352 F.3d 939, 958 (5th Cir. 2 0 0 3 ) (en banc). In Castellano, we noted that "[t]he initiation of criminal charges w it h o u t probable cause may set in force events that run afoul of explicit c o n s t it u t io n a l protection--the Fourth Amendment if the accused is seized and a r r e s t e d , for example, or other constitutionally secured rights if a case is further p u r s u e d ." Id. at 953. However, we held that a freestanding 42 U.S.C. § 1983 c la im based solely on malicious prosecution was not viable. Id. at 942. Rather, t h e claimant must allege "that officials violated specific constitutional rights in

Cuadra asserted a litany of other constitutional violations at various times throughout these proceedings, including a Fourteenth Amendment equal protection claim, First Amendment retaliatory prosecution claims, and conspiracy claims. Because Cuadra failed to brief any of these claims in his initial brief to this court, he has waived them. See Yohey v. Collins, 985 F.2d 222, 225 (5th Cir. 1993) ("This Court will not consider a claim raised for the first time in a reply brief.") (internal citations omitted).

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No. 09-20715 c o n n e c t io n with a `malicious prosecution.'" Id. at 945. Thus, Cuadra's attempt t o assert a free-standing § 1983 malicious prosecution claim fails as a matter of la w .6 2 . Independent Fourth Amendment Violations C u a d r a has not raised a genuine issue of material fact as to any other p o s s ib le violation of his Fourth Amendment rights. Cuadra explicitly waived a fa ls e arrest claim in the district court. Although Cuadra alleges he was the s u b je c t of an "unreasonable seizure," he has not shown that his arrest occurred " in an extraordinary manner, unusually harmful to an individual's privacy or e v e n physical interests." Glenn v. City of Tyler, 242 F.3d 307, 313 (5th Cir. 2 0 0 1 ). Even if we considered either a false arrest or unreasonable seizure claim, C u a d r a has failed to raise a fact issue as to lack of probable cause, a necessary c o m p o n e n t of each claim. "Probable cause exists when the totality of the facts a n d circumstances within a police officer's knowledge at the moment of arrest a re sufficient for a reasonable person to conclude that the suspect had committed o r was committing an offense." United States v. McCowan, 469 F.3d 386, 390 (5 t h Cir. 2006). We have held that "if facts supporting an arrest are placed b e fo r e an independent intermediary such as a magistrate or grand jury, the

Even if we were to reach the common law elements of malicious prosecution to determine whether the Appellees' actions led to violations of Cuadra's Fourth Amendment rights, we find that Cuadra failed to create a fact issue on several of those elements. To establish a Texas common law claim for malicious prosecution, the plaintiff must show: (1) a criminal action was commenced against him; (2) the prosecution was caused (initiated or procured) by the defendant or with his aid; (3) the action terminated in the plaintiff's favor; (4) the plaintiff was innocent; (5) the defendant acted without probable cause; (6) the defendant acted with malice; and (7) the criminal proceeding damaged the plaintiff. Taylor v. Gregg, 36 F.3d 453, 455 (5th Cir. 1994), overruled in part by Castellano, 352 F.3d 939; Richey v. Brookshire Grocery Co., 952 S.W.2d 515, 518 (Tex. 1997). Cuadra has not shown that any of the Appellees initiated or procured his prosecution, as the evidence shows that the Appellees did not influence Buess and merely cooperated with her during her independent investigation. Cuadra also created no fact issue as to whether any of the Appellees actively sought his indictment.

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No. 09-20715 in t e r m e d ia r y 's decision breaks the chain of causation for false arrest, insulating t h e initiating party." Taylor, 36 F.3d at 456. However, the chain of causation r e m a in s intact if "it can be shown that the deliberations of that intermediary w e r e in some way tainted by the actions of the defendant." Hand v. Gary, 838 F .2 d 1420, 1428 (5th Cir. 1988). "[T]he chain of causation is broken only where a ll the facts are presented to the grand jury, or other independent intermediary w h e r e the malicious motive of the law enforcement officials does not lead them t o withhold any relevant information from the independent intermediary." Id. Here, both Buess and two separate grand juries qualified as independent in te r m e d ia r ie s . Cuadra's mere allegations of "taint," without more, are Taylor, 36 F.3d at 457

in s u ffic ie n t to overcome summary judgment.

(e m p h a s iz in g that the "taint" must be shown and finding no summary judgment e v id e n c e to support assertions that an intermediary relied on an officer's false r e p o r t ). Cuadra admitted to changing the student drop-out data on October 2 2 n d , which alone should suffice to establish probable cause for his indictments. Despite the alleged significance of the "smoking gun," Buess testified in her d e p o s it io n that she did not consider the document exculpatory, and it was in her p o s s e s s io n before she sought Cuadra's re-indictment. Cuadra has also not raised a fact issue as to whether any of the Appellees knowingly withheld the "smoking g u n " document or any other allegedly exculpatory information, thereby tainting B u e s s 's independent decision to seek Cuadra's indictments or either grand jury's d e c is io n to return the indictments. A s Cuadra has failed to raise a fact issue as to any potential Fourth A m e n d m e n t violation, we AFFIRM the district court's grant of summary ju d g m e n t in favor of the Appellees on this issue. B . Cuadra's Fourteenth Amendment Substantive Due Process Claim C u a d ra preserved for appeal only one Fourteenth Amendment substantive

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No. 09-20715 d u e process claim based on his prosecution.7 We find such a claim foreclosed by t h e Supreme Court's decision in Albright v. Oliver, 510 U.S. 266 (1994). In A lb r ig h t, the Court held that there was no Fourteenth Amendment "liberty in t e r e s t " or substantive due process right to be free from criminal prosecution u n s u p p o r t e d by probable cause. Id. at 270-71; Castellano, 352 F.3d at 946S47. Rather, "[w]here a particular Amendment `provides an explicit textual source of c o n s t it u t io n a l protection' against a particular sort of government behavior, `that A m e n d m e n t , not the more generalized notion of `substantive due process' must b e the guide for analyzing these claims.'" Albright, 510 U.S. at 273 (internal c it a t io n s omitted). Thus, the Albright Court held that the plaintiff's claims b a s e d on prosecution without probable cause were best analyzed under the F o u r t h Amendment, as the "Framers [of the Constitution] considered the matter o f pretrial deprivations of liberty and drafted the Fourth Amendment to address it ." Id. at 274. Cuadra's Fourteenth Amendment claims are based on alleged pretrial d e p r iv a t io n s of his constitutional rights and, under the holding in Albright, such c la im s should be brought under the Fourth Amendment. Cuadra attempts to s u p p o r t his Fourteenth Amendment due process claims by citing the Supreme C o u r t 's holding in Napue v. Illinois, where the Court stated that "a State may n o t knowingly use false evidence, including false testimony, to obtain a tainted c o n v ic t io n . . . ." 360 U.S. 264, 269 (1959). However, Cuadra was not convicted

Cuadra's other Fourteenth Amendment claims were time-barred. The applicable limitations period for 42 U.S.C. § 1983 claims is governed by reference to the most analogous cause of action under state law. Owens v. Okure, 488 U.S. 235, 236 (1989). Under the general Texas tort statute, Cuadra had two years after the day the cause of action accrued to bring his claims. TEX. CIV. PRAC. & REM. CODE ANN. § 16.003 (Vernon 2005). Federal law determines the date of accrual for § 1983 claims. Jackson v. Johnson, 950 F.2d 263, 265 (5th Cir. 1992). A general cause of action accrues when the plaintiff becomes aware that he has suffered an injury or has sufficient information to know that he has been injured. Id. As the events Cuadra complained of in most of his Fourteenth Amendment claims occurred in 2004, and Cuadra did not file suit until 2007, those claims were time-barred.

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No. 09-20715 o f a crime based on false evidence. Rather, he complains of alleged deprivations o f his pretrial rights resulting from his indictments. Such a claim is not a viable F o u r t e e n t h Amendment claim. Thus, we AFFIRM summary judgment for the A p p e lle e s on Cuadra's Fourteenth Amendment substantive due process claim. I V . Conclusion F o r the forgoing reasons, we AFFIRM the grant of summary judgment for t h e Appellees.

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