Jabary v. City of Allen

Filing 182

ORDER ADOPTING REPORT AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE - GRANTING IN PART AND DENYING IN PART 135 Motion for Summary Judgment filed by Stephen Terrell, Bret McCullough, GRANTING 146 Motion for Leave to File, filed by Mike Jabary, for 151 Report and Recommendations. The claims against Defendant Stephen Terrell are DISMISSED WITH PREJUDICE, and the Clerk is directed to terminate Stephen Terrell from this civil action. Signed by Judge Ron Clark on 12/10/2014. (baf, )

**NOT FOR PRINTED PUBLICATION**
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF TEXAS
SHERMAN DIVISION
MIKE JABARY,
Plaintiff,
v.
STEPHEN TERRELL and BRET
MCCULLOUGH,
Defendants.

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CASE NO. 4:10-CV-711

ORDER ADOPTING REPORT AND RECOMMENDATION
OF UNITED STATES MAGISTRATE JUDGE
This matter was referred to the United States Magistrate Judge pursuant to 28 U.S.C. §
636, and he has issued his report and recommendation [Doc. #151]. The Magistrate Judge
recommended that Plaintiff’s Opposed Motion for Leave to Supplement its Response to
Defendants’ Motion for Summary Judgment [Doc. #146] be granted and that Defendants’
Motion for Summary Judgment [Doc. #135] be granted in part and denied in part.
Defendants object to five specific areas of the report and recommendation of the
Magistrate Judge pertaining to Plaintiff’s claims against Defendant Bret McCullough
(“McCullough”) [See Doc. #153]. Plaintiff Mike Jabary (“Jabary”) did not file a response.
Defendants do not object to the dismissal of Plaintiff’s claims against Defendant Stephen Terrell
(“Terrell”), or to the Magistrate Judge’s recommendation that Plaintiff’s motion for leave to
supplement be granted. The court will adopt those portions of the report and recommendation of
the Magistrate Judge.

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First, Defendants state that when accepting the supplemental response to the motion for
summary judgment, the Magistrate Judge “made it clear that no further briefing was allowed”
[Doc. #153 at 2]. Defendants then go on to note that if further briefing had been allowed, then
the Magistrate Judge would likely not have committed the errors which Defendants assert were
committed. However, Defendants misunderstand the ruling of the Magistrate Judge. The
Magistrate Judge did not prevent Defendants from filing any further briefing, but merely stated
that “no additional briefing [would be] required,” and the court’s consideration of the supplement
would not delay the proceedings any further [Doc. #151 at 9]. Defendants’ response brief in
opposition to the motion for leave to supplement noted that the court’s consideration of the
supplemental response would trigger an additional reply from Defendants and possibly a surreply from Plaintiff; however, Defendants did not request leave to file any additional briefing,
and did not state why such a response would be necessary. This court agrees that additional
briefing was not necessary given the nature of Plaintiff’s supplemental response, which primarily
relied on the addition of the deposition of McCullough to the summary judgment record, 1 and the
fact that the parties had already engaged in full briefing on the issues at summary judgment.
Further, contrary to Defendants representations, the Magistrate Judge did not deny Defendants
the opportunity to file any further briefs. Thus, to the extent that Defendants object to any
alleged failure of the Magistrate Judge to allow a reply brief to be filed, that objection is
overruled.
Defendants next object to the Magistrate Judge’s alleged failure to consider
McCullough’s declaration in its decision on summary judgment. As noted in its ruling on

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The deposition testimony of McCullough filed by Plaintiff was a rough draft transcript, and was not intended to be
cited or used by the parties. However, Defendants did not object to the introduction of the deposition testimony of
McCullough on this basis, and the court finds that the deposition testimony may be used for the purposes of this
motion.
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Plaintiff’s objections to the declaration of McCullough, the Magistrate Judge stated: “The Court
did not rely on the affidavit of McCullough, and used his deposition testimony instead, which
was submitted in its entirety by Plaintiff” [Doc. #151 at 1 n.1]. Defendants contend that there
was no reason for the Magistrate Judge not to consider the contents of McCullough’s declaration,
as the Magistrate Judge overruled Plaintiff’s objections to the declaration, and found that the
“deposition of McCullough closely follows the statements made in his affidavit…” [Doc. #151 at
9].
Defendants assert that the Magistrate Judge’s error is demonstrated by the fact that the
Magistrate Judge erroneously found a fact issue as to whether McCullough acted arbitrarily or
otherwise abused his discretion in concluding there was an emergency requiring summary action.
The Magistrate Judge noted that several days prior to the revocation of the certificate of
occupancy on June 9, 2010, there was a bad health inspection report on May 27, 2010 [Doc.
#151 at 17]. The Magistrate Judge found that although many of the same conditions existed
prior to the June 9, 2010 inspection, Jabary Mediterranean’s certificate of occupancy was not
revoked at that time. Id. The Magistrate Judge concluded that this evidence could lead a
reasonable jury to conclude that McCullough’s decision was arbitrary or an abuse of
McCullough’s discretion. Defendants contend, however, that the Magistrate Judge failed to
consider the fact that McCullough’s declaration stated that at the June 9, 2010 inspection, many
members of McCullough’s staff were present who noted that the earlier violations found on May
27, 2010, were not yet remedied by the June 9, 2010 inspection. Defendants state that the
Magistrate Judge incorrectly assumed that McCullough knew about the health and safety issues
regarding the condition of the business two weeks before he revoked the certificate of
occupancy, but did not find an exigency at that time.

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In his deposition, McCullough testified that he did not know about the prior bad health
inspection report until he arrived at Jabary Mediterranean [Doc. #147-2 at 135:11-18]. The
Magistrate Judge considered McCullough’s deposition in its decision on summary judgment, and
Defendants’ argument that an alleged error on the part of the Magistrate Judge occurred from the
failure of the Magistrate Judge to consider the declaration of McCullough does not apply here.
Defendants apparently disagree with the holding of the Magistrate Judge, which will be
addressed in this court’s consideration of Defendants’ subsequent objections; however, no error
resulted from a failure to consider the declaration of McCullough.
Defendants also assert that had the Magistrate Judge considered the declaration of
McCullough, it would have noted that McCullough stated in his declaration that he became
specifically aware that K2 was considered a dangerous substance by the City of Allen Police
Department on June 8, 2010, one day before he revoked the certificate of occupancy. This is a
mischaracterization of the facts as presented to the Magistrate Judge. Although McCullough
may have stated in his declaration that he was unaware that K2 was considered a dangerous
substance by the City of Allen Police Department until June 8, 2010, his deposition testimony
reflects otherwise. When asked when he developed a concern about the sale of K2 at Jabary’s
business, McCullough testified that he was concerned about the sale of K2 at Jabary’s for months
prior to the inspection in June. The exchange is set forth as follows:
Q. Okay. When did you develop this concern about the sale of K2 at Jabary’s
business?
A. Oh, gosh, I don’t know.
Q. The day that you went there?
A. Oh, no. I – there was – there was months of all these things. I don’t
remember.
Q. So you went there in June. Do you think you – you had developed this
concern by, say, January of that year?
A. I don’t remember.
Q. But before you went and revoked it?
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A. I didn’t know much about it then. I knew there was a community concern.
Q. Okay. You said you had known about it for months. So at least you knew
about it in May of 2010?
A. Maybe.
Q. Okay. How long was months when you say you’d known about it for months?
A. Well, I said there were months of lots of things going on. I can’t pin down the
K2 in the bucket of things.
Q. So you don’t know when you developed this concern about K2?
A. Not sure.
Q. But it wasn’t the day that you showed up at his business?
A. No.
Q. Was it the week before?
A. Not sure.
Q. You have no idea?
A. I’m not sure. Maybe. I would say maybe in a three month – maybe three or
four months. Sometime in the three or – it’s been four years ago, I don’t know.
[Doc. #147-2 at 106:19-108:1]. McCullough further stated that he had no idea what the dangers
of K2 were, that he could not state the effects that it had on the City of Allen or its citizens, and
that he was not sure why K2 specifically was considered dangerous. McCullough was not sure if
K2 was a public health risk, and the only statement that he was willing to make at his deposition
was that he had heard it was dangerous from “reliable” sources. McCullough unequivocally
testified that on the day he revoked the certificate of occupancy, he did not know if anyone died
from using K2, went to the hospital because of K2, and did not know what the dangers of K2
were. Id. at 119-121. This is quite different testimony from that contained in McCullough’s
declaration, and is one of many examples demonstrating fact issues that cloud the case at
hand. Additionally, Defendants’ apparent belief that a declaration of an official must be taken
as fact is incorrect; issues of material fact may be raised by contravening statements of others,
and of the official himself. Defendants’ objection is overruled.
Defendants also assert that had the Magistrate Judge considered the declaration of
McCullough, the Magistrate Judge would have noted that McCullough stated: “I was concerned
that Mr. Jabary’s business was at that time an immediate risk to public health and safety” [Doc.
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#153 at 7 (citing McCullough Dec., Defs’ MSJ Apx. p. 91 ¶ 21, Doc. 135-2 p. 91)]. The
Magistrate Judge did consider the same or similar testimony from McCullough appearing in his
deposition [Doc. #151 at 4-5 (noting that McCullough was “absolutely shocked” when he arrived
at Jabary Mediterranean, that Jabary had “abused” his certificate, and that Jabary was written up
for numerous public health and safety violations; at 16 (describing all the reasons why
McCullough determined that the certificate should be revoked); see also Doc. #147-2 at 126:1118 (discussing public health and safety risks); 234:5-235:8 (discussing McCullough’s statement
that Jabary Mediterranean was “an immediate risk to public health and safety”)]. In short, there
is ample information in the deposition of McCullough that he alleges that he revoked the
certificate of occupancy based on his belief that Jabary Mediterranean was “an immediate risk to
public health and safety,” and no error resulted from the Magistrate Judge’s failure to consider
the declaration of McCullough.
Further, had the Magistrate Judge been inclined to consider this statement in the
declaration of McCullough, it is irrelevant to the question facing the court. As the Magistrate
Judge pointed out, “the question before the Court is not whether an emergency actually existed,
but whether McCullough acted arbitrarily or otherwise abused his discretion in concluding that
there was an emergency requiring summary action” [Doc. #151 at 16]. Thus, although
McCullough claims that he was concerned for the public health and safety, the only question that
the court must consider is whether McCullough acted arbitrarily or otherwise abused his
discretion. Thus, Defendants’ objections to the failure of the Magistrate Judge to consider the
affidavit of McCullough are overruled.
Next, Defendants assert that the Magistrate Judge failed to apply the correct summary
judgment burden-shifting analysis in the context of qualified immunity. Defendants argue that

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“[o]nce an official pleads the qualified immunity defense, the burden then shifts to the plaintiff
who must rebut the defense by establishing a genuine fact issue as to whether the official’s
allegedly wrongful conduct violated clearly established law” [Doc. #153 at 8]. Defendants assert
that Plaintiff bears the burden of negating qualified immunity. Id. Defendants argue that the
Magistrate Judge failed to recognize Plaintiff’s burden, and applied Plaintiff’s burden incorrectly
in its report and recommendation.
As for Defendants’ statement that the Magistrate Judge failed to recognize Plaintiff’s
burden, the court finds this objection is overruled. The Magistrate Judge clearly stated, “the
Court must determine whether Jabary raises a genuine issue of material fact with respect to…
qualified immunity…” [Doc. #151 at 9; see also id. at 18 (“[Qualified immunity] shields
particular government officials from civil damages liability unless the plaintiff proves (1) that
the officials violated a ‘clearly established constitutional or statutory right’ and (2) that the
officials’ conduct was objectively unreasonable.” (emphasis added))]. Thus, the Magistrate
Judge clearly recognized that it was Jabary’s burden to demonstrate a genuine issue of material
fact.
The court will now turn to Defendants’ assertion that the Magistrate Judge incorrectly
applied Plaintiff’s burden in the instant case. Defendants contend that the Magistrate Judge
recognized that the circumstances regarding the revocation of the certificate of occupancy were
largely undisputed. The Magistrate Judge found that Defendants’ evidence demonstrated the
following:
McCullough testified that there were several factors that contributed to his
decision to revoke the Certificate. First, he entered Jabary’s restaurant and found
it to be set up like a lounge, and not like a restaurant. Jabary’s Certificate is
issued for restaurant use. There was a display case that used to contain food that
at the time of the inspection contained only tobacco or smoking materials. It was
clear to McCullough that Jabary was not operating a restaurant. Second, the
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kitchen was dirty and unsanitary. The food establishment inspection report notes
that there was expired milk in the refrigerator, there was unlabeled turkey, the
dishwashing facilities were unsanitary with tobacco and hookah equipment, there
was no sanitizer in the entire facility, all the hand sinks were blocked and
unusable, the kitchen lacked vinyl coated ceiling tiles, and the kitchen contained
old, unused kitchen equipment (Dkt. #135 at Apx. 55). Jabary did not have
unexpired food available for sale at that time. Third, McCullough was aware that
Jabary was selling K2, a product he believed to be dangerous to the public, but
legal to sell. McCullough was also aware that Jabary sold tobacco to minors.
[Doc. #151 at 16]. The Magistrate Judge then recognized that Plaintiff’s evidence indicated the
following:
Jabary does not refute any of this evidence. Jabary argues that McCullough
testified that there were no exigent circumstances sufficient to justify a public
health or safety emergency. In support of this argument, Jabary points to
McCullough’s deposition where he testified:
Q. He was egregiously violating the law as you had determined it. But
that was one of the many factors, but it was that and not an emergency
issue; is that correct?
A. I couldn’t put my finger on an emergency issue.
(Dkt. #147 at Deposition 141:7-10). Jabary also notes that when asked about the
dangers of K2 or the side effects of K2, McCullough testified that he did not
know. McCullough also testified that Jabary did not have any food in the
restaurant, that he did not know anyone who had gotten sick from Jabary
Mediterranean, and did not know if Jabary was selling food. Id. at 123:10-15;
124:13-14; 125:24-25. Jabary also argues that McCullough was aware for months
that Jabary sold hookah and K2, and did not find it exigent to revoke his
Certificate during those months. Further, Jabary asserts that he had a bad health
inspection on May 27, 2010, which was several days prior to the revocation of the
Certificate on June 9, 2010. Jabary contends that it was not considered an
exigency to revoke his Certificate at that time for similar health violations.
Id. at 16-17. Based on the two different interpretations of the facts in this case, the Magistrate
Judge concluded that “there is a fact question as to whether McCullough acted arbitrarily or
otherwise abused his discretion in concluding that there was an emergency requiring summary
action.” Id. at 17 (citing RBIII, L.P. v. City of San Antonio, 713 F.3d 840, 845 (5th Cir. 2013)).
The Magistrate Judge essentially concluded that there was a genuine fact issue, raised by

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Plaintiff, as to whether McCullough acted arbitrarily or abused his discretion when he concluded
that the circumstances that existed in Jabary Mediterranean on June 9, 2010, were an emergency
requiring him to take action without providing Jabary with notice and a hearing prior to the
deprivation of his property interest. McCullough’s testimony reveals that he claims to have been
“shocked,” but since could he not put a finger on an emergency issue, perhaps a jury would find
that he is overly sensitive. He could not testify to the dangers of any of the conditions he
observed that Defendants allege justified the revocation of the certificate. As the Magistrate
Judge pointed out, in considering a motion for summary judgment the court must consider all of
the evidence but must refrain from making any credibility determinations or from weighing the
evidence. See Turner v. Baylor Richardson Med. Ctr., 476 F.3d 337, 343 (5th Cir. 2007). At
least with regard to this particular issue, it appears that a fact issue is created by the testimony of
McCullough himself, and it would not be appropriate for the court to make a credibility
determination regarding McCullough’s testimony or to determine which version of the facts as
stated by McCullough are, in fact, true. That is the province of the jury, and the court finds this
objection is overruled.
Next, Defendants object to the alleged failure of the Magistrate Judge to apply an
objective analysis to the constitutional violation. Defendants contend that the Magistrate Judge
used an improper “hindsight” analysis to determine that “because the conditions at Plaintiff
Jabary’s business may have existed 12 days prior to the revocation of the Certificate a
hypothetical jury might find that McCullough acted arbitrarily by waiting 12 days to revoke the
Certificate.” [Doc. #153 at 17]. Defendants argue that if the Magistrate Judge had considered
the facts which objectively existed, that were known to McCullough, and if those facts, viewed
objectively, supported McCullough’s actions, then there is no violation. Defendants assert that

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McCullough had a reasonable basis for finding a public health emergency existed, and that the
Magistrate Judge erred in considering that another public official might think there was no
emergency.
Defendants assert that the following factors demonstrate the objective reasonableness of
the public health and safety exigency on the day McCullough revoked the certificate of
occupancy:
(1) It was undisputed that McCullough was unaware of the earlier poor health
inspection report until he arrived at Jabary’s business on June 9, 2010;
(2) The poor health inspection reports noted that a follow-up visit from health
inspectors would be “soon,” and that the report contained a handwritten notation
“30 days to fix noncritical items, 24 all others”; and
(3) The health inspection report issued June 9, 2010, lists many of the same
violations.
[Doc. #153 at 18-19]. Defendants argue that the Magistrate Judge improperly considered
McCullough’s actions in hindsight, and failed to consider whether McCullough had reasonable
grounds for believing that a danger existed that required summary action.
Defendants are incorrect. The Magistrate Judge clearly recognized that “the question
before the Court is not whether an emergency actually existed, but whether McCullough acted
arbitrarily or otherwise abused his discretion in concluding that there was an emergency
requiring summary action” [Doc. #151 at 16]. The Magistrate Judge considered all of the
evidence cited by Defendants, and came to the conclusion that there was a fact issue that
precluded summary judgment. Specifically, the Magistrate Judge concluded that if a jury
considered the facts at issue and found that McCullough went to Jabary’s business and learned
that Jabary had been cited twelve days earlier for certain health violations, that Jabary had been
given thirty days to cure many of the deficiencies noted by the inspectors, and that McCullough
had been aware for months that K2 was a dangerous substance and that Jabary was selling that

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substance, then that same jury could conclude that McCullough acted arbitrarily or abused his
discretion on the day he conducted the inspection. Defendants’ objection is overruled.
Next, Defendants assert that the Magistrate Judge incorrectly analyzed the qualified
immunity question because it did not consider whether, under the totality of the circumstances
facing McCullough, the law was so clearly established under existing precedent so that
entitlement to pre-revocation notice and a hearing was established beyond debate [Doc. #153 at
21 (citing Hogan v. Cunningham, 722 F.3d 725, 735 (5th Cir. 2013)]. Defendants contend that
when the court conducts a qualified immunity analysis, there are two prongs to the analysis.
First, the court must determine whether or not a Constitutional violation occurred. Second, the
court must determine whether there was immunity for such a violation. Defendants assert that if
the court determines that a Constitutional violation occurred, that determination does not defeat
immunity, but requires the court to engage in the other prong of the immunity analysis.
In considering whether McCullough was entitled to qualified immunity, the Magistrate
Judge determined that there was a fact question as to whether a Constitutional violation occurred.
However, Defendants ignore the fact that the Fifth Circuit, in its prior consideration of this case,
determined that:
Predeprivation notice, when depriving someone of an important property interest,
is “the root requirement of the Due Process Clause.” Jabary’s property interest in
the Certificate was obvious and the alleged failure to give predeprivation process
was a violation of a clearly established right under the Fourteenth Amendment.
[Doc. #151 at 21]. Thus, the question of whether or not there was a violation of a clearly
established right has already been addressed by the Fifth Circuit, and must be determined after a
jury determines whether or not McCullough acted arbitrarily or abused his discretion, because
that finding will determine whether predeprivation notice was required or if the postdeprivation
procedures were sufficient to satisfy the due process requirement. The resolution of this question
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revolves around the same factual issue noted above, and the Magistrate Judge properly found
that there was a fact issue regarding whether McCullough is entitled to qualified immunity.
Defendants’ objection is overruled.
The court has conducted a de novo review of the objections in relation to the pleadings
and applicable law. After careful consideration, the court concludes Defendants’ objections are
without merit and are, therefore, overruled.
It is therefore ORDERED that the Report and Recommendation of United States
Magistrate Judge [Doc. #151] is hereby adopted; Plaintiff’s Opposed Motion for Leave to
Supplement its Response to Defendants’ Motion for Summary Judgment (Dkt. #146) is
GRANTED; Defendants’ Motion for Summary Judgment (Dkt. #135) is GRANTED IN PART
and DENIED IN PART; and the claims against Defendant Stephen Terrell are dismissed with
prejudice, and the Clerk is directed to terminate Stephen Terrell from this civil action.
So ORDERED and SIGNED this 10 day of December, 2014.

___________________________________
Ron Clark, United States District Judge

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