Lewis v. Moore
Filing
36
Memorandum Opinion and Order granting 28 Motion to Dismiss filed by Kenneth Moore. (Ordered by Judge Ed Kinkeade on 6/3/2011) (axm)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF TEXAS
DALLAS DIVISION
JEFFERY SCOTT LEWIS,
Plaintiff,
v.
KENNETH MOORE,
Defendant.
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Civil Action No.
3:09 -CV-1720-K
MEMORANDUM OPINION AND ORDER
Before the Court is Defendant Officer Kenneth Moore’s Renewed Rule 12(b)(6)
Motion (Doc. No. 26). The Court has considered Officer Moore’s motion and the
applicable law. Plaintiff Jeffery Scott Lewis did not file a response. Because Mr. Lewis
has failed to sufficiently plead his § 1983 claim to overcome Officer Moore’s assertion
of qualified immunity, the motion is GRANTED and Mr. Lewis’ remaining claim is
DISMISSED with prejudice. Judgment will be entered in a separate document. FED .
R. CIV . P. 58(a).
I.
Background
Officer Moore was working as a police officer for the City of Terrell, Texas in
December 2007 when he began investigating an aggravated robbery of a Murphy USA
service station in October 2007, a few months before. The store clerk who had been
working during the robbery gave a statement to Officer Moore describing the suspect,
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stating that the suspect did not wear a mask or otherwise obscure his face during the
robbery. Officer Moore recorded a description of the suspect’s height and weight,
distinctive markings on his face, and what the clerk described as a “baby face.”
Officer Moore, acting on information provided by informants, identified Mr.
Lewis as a suspect in the robbery. When Officer Moore presented a photograph of Mr.
Lewis to the store clerk in a photo line-up, the clerk identified Mr. Lewis. Officer Moore
submitted an affidavit in support of a warrant application for Mr. Lewis on December
6, 2007, identifying the informant and the store clerk’s identification of Mr. Lewis’
photo as grounds for probable cause to arrest Mr. Lewis. Mr. Lewis was arrested for
aggravated robbery on January 14, 2008, but was not prosecuted by the Kaufman
County district attorney’s office. Tests on the fingerprints and DNA evidence recovered
from the robbery getaway car, completed after Mr. Lewis was arrested, could not
conclusively implicate or exonerate Mr. Lewis.
After the Kaufman County district attorney’s office failed to prosecute him for the
robbery, Mr. Lewis filed this lawsuit on August 5, 2009, alleging violations of his civil
rights and asserting various Texas state law claims, including abuse of process and
malicious prosecution. This Court dismissed all of the Texas state law claims asserted
by Mr. Lewis on March 24, 2011, leaving only Mr. Lewis’ § 1983 claim for violations
of his Fourth Amendment rights. Officer Moore filed his second motion to dismiss on
May 3, 2011.
In this motion, Officer Moore argues Mr. Lewis’ claim should be
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dismissed for failure to overcome Officer Moore’s qualified immunity defense. Mr.
Lewis contends Officer Moore filed an affidavit containing false information in order to
obtain the warrant for Mr. Lewis’ arrest and pursued an investigation against him on
improper grounds. Officer Moore argues probable cause existed to sign an affidavit to
obtain an arrest warrant, based on his training and experience.
II.
Legal standard for a motion to dismiss
In reviewing a Rule 12(b)(6) motion, which tests the legal sufficiency of the
claims stated in the complaint, a court must look solely at the pleadings themselves.
Jackson v. Procunier, 789 F.2d 307, 309 (5th Cir. 1986). In looking at whether the
complaint states a valid claim upon which relief can be granted, the court must view all
facts in a light most favorable to the plaintiff and resolve any doubts in favor of the
plaintiff. Lowrey v. Texas A&M Univ. Sys., 117 F.3d 242, 247 (5th Cir. 1997).
To survive a 12(b)(6) motion, a plaintiff must not make mere conclusory
allegations, but must plead specific facts. Guidry v. Bank of LaPlace, 954 F.2d 278, 281
(5th Cir. 1992). “Where a complaint pleads facts that are ‘merely consistent with’ a
defendant’s liability, it ‘stops short of the line between possibility and plausibility of
entitlement to relief.’” Ashcroft v. Iqbal, __ U.S. __, 129 S. Ct. 1937, 1949 (2009) (citing
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 557 (2007)).
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III.
Analysis
Mr. Lewis has filed a § 1983 claim against Officer Moore for violations of his
Fourth Amendment rights, specifically that Mr. Lewis was falsely arrested. Section 1983
allows a citizen to bring suit against anyone who, under color of law, deprives him of any
rights, privileges, or immunities secured by the Constitution and laws of the United
States. 42 U.S.C. § 1983 (2006). A false arrest claim requires a plaintiff to prove that
he was arrested without probable cause. Moore v. McDonald, 30 F.3d 616, 620 n.2 (5th
Cir. 1994).
In response, Officer Moore has asserted a qualified immunity defense. Qualified
immunity protects “government officials acting within their discretionary authority from
liability when their conduct does not violate clearly established statutory or
constitutional law of which a reasonable person would have known.” Wallace v. County
of Comal, 400 F.3d 284, 289 (5th Cir. 2005) (citation omitted). When the defense of
qualified immunity is raised, the plaintiff must assert facts at the pleading stage which,
if proved, would defeat a claim of immunity. Brown v. Glossip, 878 F.2d 871, 874 (5th
Cir. 1989). This means the plaintiff must demonstrate that “on an objective basis, it is
obvious no reasonably competent officer would have concluded that a warrant should
issue.” Streetman v. Jordan, 918 F.2d 555, 556 (5th Cir. 1990) (quoting Malley v. Briggs,
475 U.S. 335, 341 (1986)). Once a defendant has raised a qualified immunity defense,
the burden shifts to the plaintiff to show the government actor’s conduct clearly violated
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established law. Brumfield v. Hollins, 551 F.3d 322, 326 (5th Cir. 2008).
Officer Moore has raised a qualified immunity defense. See Doc. No. 22 at ¶ 11.
In his answer, Officer Moore pleads the following facts in support: (1) during his
investigation, Officer Moore spoke to informants that indicated Mr. Lewis had
committed the robbery because he was behind on his child support payments, id.; (2)
Mr. Lewis was known to Officer Moore as an individual who had committed offenses in
the past, id.; (3) a photo of Mr. Lewis from a previous arrest matched the description of
the suspect given by the convenience store clerk, id.; and (4) Mr. Lewis’ photo was
selected out of a photo line-up by the clerk, id.
It is Mr. Lewis’ burden, once a qualified immunity defense is raised, to plead facts
which show a government actor clearly violated established law. Brumfield, 551 F.3d at
326.
Mr. Lewis has not filed a response to Officer Moore’s motion to dismiss.
Therefore, the only sources from which this Court may draw factual assertions are Mr.
Lewis’ original complaint (Doc. No. 1) and his Rule 7(a) reply (Doc. No. 26). In his
complaint and reply, Mr. Lewis makes the following assertions: (1) Officer Moore lied
about the existence of freckles under Mr. Lewis’ eyes in the affidavit he submitted in
support of the warrant application, Doc. No. 1 at 15; (2) Officer Moore lied about the
existence of the booking photo of Mr. Lewis shown to the convenience store clerk during
the photo line-up, id.; (3) Officer Moore was acting on Mr. Lewis’ background, and not
evidence of the aggravated robbery, when he arrested Mr. Lewis, Doc. No. 26 at ¶ 2; and
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(4) Officer Moore knew Mr. Lewis was on parole and that an arrest would affect Mr.
Lewis’ release status, id. at ¶ 3.
Initially, this Court finds that probable cause existed to arrest Mr. Lewis based
on Officer Moore’s affidavit: informants identified Mr. Lewis as a possible suspect in the
robbery, Mr. Lewis matched the description given by the store clerk, and the clerk
picked Mr. Lewis’ photo out of a line-up. See McBride v. Crime Stoppers, 41 F.3d 661, *4
(5th Cir. 1994) (probable cause existed where anonymous third party identified plaintiff
as the robber, plaintiff matched general physical description of suspect, and complainant
identified plaintiff’s photo). Mr. Lewis has not shown it was obvious no reasonably
competent officer would have concluded that a warrant should issue. Streetman, 918
F.2d at 556.
Second, Mr. Lewis’ objections do not eliminate the existence of that probable
cause. Mr. Lewis’ first two concerns are without merit; Officer Moore submitted the
photo shown to the convenience store clerk with his original answer. See Doc. No. 20,
Exh. 1. The Court is satisfied that the photo exists and is consistent with Officer
Moore’s description in his affidavit. See id. As to Mr. Lewis’ third objection, the Court
notes that a suspect’s criminal record is a valid consideration when determining probable
cause. United States v. Farese, 612 F.2d 1376, 1379 n.5 (5th Cir. 1980) (citing United
States v. Harris, 403 U.S. 573, 589 (1971)). Finally, Mr. Lewis has pleaded no facts
suggesting Officer Moore focused his investigation on Mr. Lewis to negatively affect Mr.
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Lewis’ parole status.
IV.
Conclusion
Because Mr. Lewis has failed to plead facts which overcome Officer Moore’s
defense of qualified immunity, Officer Moore’s motion is GRANTED and Mr. Lewis’
§ 1983 claim for false arrest is DISMISSED with prejudice. With no claims remaining,
judgment in this action will be entered in a separate document. FED . R. CIV . P. 58(a).
SO ORDERED.
Signed June 3rd, 2011.
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ED KINKEADE
UNITED STATES DISTRICT JUDGE
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