Richards v. Cannon et al
Filing
125
MEMORANDUM ORDER ADOPTING 116 REPORT AND RECOMMENDATIONS ORDERING that 51 Motion for Summary Judgment is Granted and FURTHER ORDERED that plaintiff's cause of action against Cannon, Pearce, Hilton and Head is Dismissed With Prejudice. Signed by Judge Rodney Gilstrap on 3/18/2016. (sm, )
IN THE UNITED STATES DISTRICT COURT
OF THE EASTERN DISTRICT OF TEXAS
TEXARKANA DIVISION
ELIZABETH RICHARDS AND
MARCUS TYRELL GAY, SR.
V.
CHARLES CANNON, ET AL.
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No. 5:14CV111-JRG-CMC
MEMORANDUM ORDER
The above-entitled and numbered civil action was referred to United States Magistrate Judge
Caroline M. Craven pursuant to 28 U.S.C. § 636. The Report of the Magistrate Judge which
contains her proposed findings of fact and recommendations for the disposition of such action has
been presented for consideration. Plaintiffs filed objections to the Report and Recommendation. The
Court conducted a de novo review of the Magistrate Judge’s findings and conclusions.
BACKGROUND
Pro se plaintiffs Elizabeth Richards and Marcus Tyrell Gay, Sr. (“Plaintiffs”) filed separate
civil rights lawsuits seeking damages arising under the United States Constitution via 42 U.S.C. §
1983 for their alleged wrongful arrests on February 26, 2013. The two lawsuits were consolidated
into the current matter on October 17, 2014. On October 20, 2014, Plaintiffs filed an Amended
Defendants List, which included the State of Texas; Troopers Charles Cannon, Jason Pearce, Justin
Hilton, and Nathan Head in their individual and official capacities; and an “unknown officer” with
the Texas Department of Public Safety.
On December 1, 2014, the Magistrate Judge ordered Plaintiffs to file one consolidated
amended complaint, setting forth the remaining defendants, the alleged acts committed by each
defendant, in what capacity each defendant is being sued, and the relief requested by each plaintiff.
(Docket Entry # 34). The consolidated amended complaint filed by Plaintiffs on December 29, 2014
listed the State of Texas and Troopers Cannon, Hilton, and Head (but not Pearce).1
Plaintiffs filed a Second Amended Complaint (entitled “Amended Complaint”) on July 22,
2015, adding as defendants for the first time the Texas Department of Public Safety (“DPS”);
Supervisors Gonzalez, Bryant, and Roney; Titus County, Texas; Titus County Jail Captain Fosdick;
the City of Mt. Pleasant, Texas; and Craig-Burns, an employee with the Texas Department of Family
and Protective Services. (Docket Entry # 48). On January 25, 2016, the Magistrate Judge issued a
Report and Recommendation, recommending Plaintiffs’ claims against these newly-added
defendants be dismissed. After considering Plaintiffs’ objections, the undersigned adopted the
Report and Recommendation as the findings and conclusions of the Court.
Thus, the only remaining defendants are DPS Troopers Cannon, Pearce, Hilton, and Head
(“Defendants”). Defendants moved for summary judgment, asserting they are entitled to qualified
immunity with regard to Plaintiffs’ § 1983 cause of action for false arrest.
REPORT AND RECOMMENDATION
On February 11, 2016, the Magistrate Judge issued a 21-page Report and Recommendation,
recommending Defendants’ motion for summary judgment be granted and that Plaintiffs’ aboveentitled and numbered cause of action against Defendants be dismissed with prejudice. Specifically,
the Magistrate Judge found the initial traffic stop was reasonable, and Plaintiffs’ continued detention
was based on reasonable suspicion. According to the Magistrate Judge, a reasonable peace officer
in Trooper Cannon’s position would think, based on the totality of the circumstances, that he had
reasonable suspicion for the prolonged stop.
The Magistrate Judge further noted a drug detection canine alerted to part of the vehicle,
1
Any unknown officer(s) and the State of Texas have been dismissed from this lawsuit.
2
giving Trooper Cannon probable cause to search the vehicle for contraband. The Magistrate Judge
found Defendants had demonstrated there are no genuine issues of material fact regarding the issue
of probable cause for Plaintiffs’ arrest. She also concluded the subsequent impoundment of the
vehicle and the inventory search were also reasonable.
Finally, the Magistrate Judge found Defendants are entitled to qualified immunity. The
Magistrate Judge viewed the evidence, including the video of the traffic stop, in the light most
favorable to Plaintiffs and found Defendants’ conduct did not deprive Plaintiffs of a “clearly
established” constitutional or statutory right.
PLAINTIFFS’ OBJECTIONS
Plaintiffs filed objections to the Magistrate Judge’s recommendation. In their objections,
Plaintiffs argue for the first time that Defendants conspired with one another and also initiated a
malicious prosecution against Plaintiffs in violation of the Fourth and Sixth Amendments.2 Although
Plaintiffs’ Amended Complaint contains no allegations of malicious prosecution or conspiracy,
Plaintiffs argue in their objections that Defendants have not properly addressed “malicious
prosecution.”
Regarding the false arrest claim that is alleged in the live pleading and is the subject of the
2
Specifically, Plaintiffs assert Defendants “deliberately lied to a Grand Jury making arbitrary
accusations that resulted in” criminal charges being filed against them in Titus County, Texas (Cause
Nos. 18374 and18375). According to Plaintiffs, the charges were ultimately dismissed because
Defendants had no corroborating evidence showing Plaintiffs were guilty of possession of marijuana.
(Docket Entry # 124 at 14). Although the video and numerous photos reveal “plastic in bundles,”
Plaintiffs assert no marijuana was discovered by any trooper, and no testing ever revealed the
presence of marijuana. Id.
Plaintiffs further assert there was a conspiracy between Defendants and Titus County, Texas
which “promulgated the denial of Plaintiffs’ right to speedy trial and Fourth Amendment protections
from pretrial deprivations.” Id. at 15.
3
February 11 Report and Recommendation before the Court, Plaintiffs assert the following specific
objections, all of which were raised in the original briefing considered by the Magistrate Judge.
Cannon:
•
Cannon’s initiation of the traffic stop was illegal because Cannon never observed Plaintiffs
speeding. Nor did he use any radar equipment to measure Plaintiffs’ speed. The allegation
of speeding was a “pretextual allegation” used to “falsely cultivate and falsely establish a
court’s minimum requirement for reasonable suspicion for initiating a traffic stop.” (Docket
Entry # 124 at 3).
•
Cannon never issued or intended to issue Gay a warning citation for speeding but only
planned to question Gay in his squad car and violate his privacy by subjecting him to a search
of his vehicle.
•
While Cannon was conducting license and registration verifications on Marcus Gay and the
rental car he was driving, Gay truthfully answered all of Cannon’s questions about his
company affairs, the purpose of the trip, and his criminal history, which came back “clear”
with no warrants. Id.
•
When a criminal history for Gay was revealed on the in-car computer, Gay explained to
Cannon that “the stuff was not convictions on his record and that it must have been things
from his brother Fredrick ‘Fred’ Gay’s criminal history. . . . Cannon was aware that Fredrick
. . . Gay is known for using Marcus Gay, Sr. as an alias name with police. . . .” Id.
•
Cannon fabricated Gay’s criminal history in his “self-serving police report.” Id. at 4.
•
Afer Gay refused consent to search his vehicle, Cannon illegally expanded the scope of the
traffic stop and unlawfully prolonged the traffic stop beyond the time reasonably necessary
to issue a warning for alleged speeding.
•
Cannon dispatched the drug k-9 unit without any probable cause.
•
Cannon’s statement on the “altered video tape” that “its in the doors” was a deliberate lie,
as the photos reveal the rental vehicle had a “rubber gasket seal that would have blocked any
view of the interior chamber of the door by Cannon.” Id. at 6.
•
Cannon illegally arrested Plaintiffs under a “bet” with other officers for cocaine possession.
Pearce
•
Canine handler Pearce, knowing a refusal to consent to a search is not a legal ground to
expland the scope of a traffic stop, conspired with Cannon to assist him. “This act conducted
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under color of state law initiated the conspiracy against the Plaintiffs.” Id. at 5.
•
Pearce deliberately lied in his police report when stating K-9 Bora gave a positive alter for
drugs. Pearce waving his hand in Bora’s face caused the canine to make “what they falsely
construed to be [an] alert. . . .” Id.
Hilton and Head
•
Several other troopers, including Justin Hilton and Nathan Head, also arrived at the scene
before Pearce’s false declaration of a positive alert. They conspired together with Cannon
and Pearce to interfere with Plaintiffs’ civil rights. Id at 5-6.
•
After 45 minutes of unlawful detainment, Cannon announced “its in the doors” with no
verification or validation from the other troopers. Id. at 6.
•
Without probable cause, Head physically drove off in Plaintiffs’ rental car.
Defendants
•
The car was damaged when Defendants broke the doors and other interior compartments and
seats. Id.
•
After damaging the doors, “it can be heard on the video tape that there is no cocaine in the
door. Several officers block the view of the dash cam recording. An officer is heard making
a statement that marijuana is found, and instantly it can be heard from another officer stating,
‘and they say the police don’t lie.’ The troopers lied about discovering marijuana in
Plaintiffs’ . . . possession and vehicle.” Id. at 6-7.
DE NOVO REVIEW
Since Plaintiffs are representing themselves, the Court construes the allegations in their
complaint liberally. Hughes v. Rowe, 449 U.S. 5, 9 (1980)(per curiam). While the Court liberally
construes the briefs of pro se litigants, pro se parties must still brief issues and reasonably comply
with court standards. Grant v. Cuellar, 59 F.3d 523 (5th Cir.1995). “Additionally, courts are not
obligated under Federal Rule of Civil Procedure 56 to search the record in order to find evidence
supporting a party’s opposition to a summary judgment motion.” Osborne v. City of Dallas, 2015
WL 8569581, at *2 (N.D. Tex. Nov. 25, 2015) report and recommendation adopted, 2015 WL
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8538918 (N.D. Tex. Dec. 11, 2015).
Plaintiffs’ Amended Complaint makes no mention of any conspiracy with respect to any of
the defendants. The word “conspiracy” does not appear one time. Additionally, no conspiracy theory
was ever alleged against Defendants in Plaintiffs’ response to Defendants’ motion for summary
judgment.
Plaintiffs also attempt to defeat summary judgment based on a malicious prosecution
argument never previously raised by Plaintiffs in this case.3 Plaintiffs’ Amended Complaint never
alleges a claim for malicious prosecution. The complaint alleges Cannon and Pearce fabricated
circumstantial information to justify the unlawful traffic stop, search and seizure, and subsequent
arrest of Plaintiffs (Docket Entry # 48 at 5). However, it does not mention any subsequent
prosecution at all, much less specific conduct and actions giving rise to a constitutional violation
insofar as Defendants fabricated evidence or withheld evidence to get them falsely charged. Contrary
to the assertions made for the first time in their objections, Plaintiffs have never alleged, or sought
leave to allege, that Defendants conspired with each other or deliberately lied to a Grand Jury by
making “arbitrary accusations” against Plaintiffs to get them charged in criminal proceedings.4
3
There is no substantive right under the Due Process Clause of the Fourteenth Amendment
to be free from criminal prosecution except upon probable cause. Cole v. Carson, 802 F.3d 752, 765
(5th Cir. 2015). There may be a due process violation, however, where police intentionally fabricate
evidence and successfully get someone falsely charged, and the Fourth Amendment is unavailing.
Id. at 773. In Cole, the Fifth Circuit “agree[d] with those [circuit courts] that have found a due
process right not to have police deliberately fabricate evidence and use it to frame and bring false
charges against a person.” Id. at 771.
4
“[W]hen a plaintiff sues a public official under § 1983, the district court must insist on
heightened pleading by the plaintiff.” Morin v. Caire, 77 F.3d 116, 121 (5th Cir. 1996). “Heightened
pleading requires allegations of fact focusing specifically on the conduct of the individual who
caused the plaintiff['s] injury.” Reyes v. Sazan, 168 F.3d 158, 161 (5th Cir. 1999). The case should
not be allowed to proceed unless plaintiff can assert specific facts that, if true, would overcome the
defense. See Morin, 77 F.3d at 120 (“Public officials are entitled to qualified immunity from suit
6
(Docket Entry # 124 at 14 & 16).
Defendants moved for summary judgment only on the false arrest claim asserted by Plaintiffs
in their Amended Complaint; Plaintiffs’ responsive briefing only addressed the false arrest claim;
and the Magistrate Judge’s Report and Recommendation only addressed the false arrest claim. The
Magistrate Judge thoroughly considered Plaintiffs’ claim that Defendants fabricated evidence to
justify what was an illegal traffic stop, including Plaintiffs’ arguments outlined in the bullet points
above. After viewing the video of the stop, the Magistrate Judge found it contains nothing that
creates a genuine issue of material fact that probable cause was lacking for Plaintiffs’ arrest. The
Court agrees. Viewing all of the evidence in the light most favorable to Plaintiffs, the Court finds
Plaintiffs have not met their summary judgment burden of asserting specific facts showing there is
a genuine issue of material fact on one of the essential elements of their false arrest claim, namely
that the arresting officer lacked probable cause. FED. R. CIV. P. 56(e).
Defendants also raised the defense of qualified immunity. Therefore, it is Plaintiffs’ burden
to rebut Defendants’ claim of qualified immunity. Cole, 802 F.3d at 757. The majority of Plaintiffs’
objections address claims never plead in this case. The remaining objections merely rehash
arguments fully considered by the Magistrate Judge in the February 11 Report and Recommendation.
A “fair reading” of Plaintiffs’ objections does not reveal any attempts by Plaintiffs to rebut
Defendants’ qualified immunity defense as to Plaintiffs’ false arrest claim. See Osborne, 2015 WL
8569581, * 2. Because Plaintiffs have failed to present competent evidence to rebut Defendants’
under § 1983 unless it is shown by specific allegations that the officials violated clearly established
law.”); Schultea v. Wood, 47 F.3d 1427, 1434 (5th Cir.1995) (“The district court need not allow any
discovery unless it finds that plaintiff has supported his claim with sufficient precision and factual
specificity[.]”).
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qualified immunity defense, Plaintiffs have failed to meet their burden. Defendants are entitled to
judgment as a matter of law.
Plaintiffs’ objections are without merit and are overruled. The Court is of the opinion that
the findings and conclusions of the Magistrate Judge are correct. Therefore, the Court hereby adopts
the Report of the United States Magistrate Judge as the findings and conclusions of this Court.
Accordingly, it is hereby
ORDERED that Defendants’ Cannon, Pearce, Hilton, and Head’s Motion for Summary
Judgment (Dkt. No. 51) is GRANTED. It is further
ORDERED that Plaintiffs’ above-entitled and numbered cause of action against Cannon,
Pearce, Hilton, and Head is DISMISSED WITH PREJUDICE.
So Ordered this
Mar 18, 2016
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