Florence v. Galveston Police Officer Clemente Garcia III et al

Filing 202

OPINION AND ORDER denying 199 Motion for Rule 60(b) Motion.(Signed by Magistrate Judge John R Froeschner) Parties notified.(sanderson, 3)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF TEXAS
GALVESTON DIVISION
THOMAS FLORENCE, #1729344
VS.
OFFICER CLEMENTE GARCIA III
and SGT. CHAPMAN

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CIVIL ACTION NO. G-11-134

OPINION AND ORDER
On June 30, 2014, Plaintiff, Thomas Florence, filed a “Rule 60(b) Motion” in an
effort to set aside a ruling by Judge Costa dismissing, inter alia, his false arrest claim. Rule
60(b) has no application at this juncture because no final judgment has been entered in this
cause. Therefore, Florence’s Motion must be considered under Rule 54(b) which provides
that a non-final order “is subject to revision at any time before the entry of judgment
adjudicating all the claims and the rights and liabilities of all the parties.” Cf. Interstate
Power v. Kansas City Power, 992 F.2d 804, 807 (8th Cir. 1993)
Through the instant Motion and a plethora of similar filings, Florence continues to try
to resurrect his false arrest claim. The gist of the claim is that Defendant Garcia conspired
with other now-dismissed Defendants to arrest him on the basis of a null and void
“camouflage” blue warrant. He, therefore, asserts his arrest was without probable cause.
All of the arguments and relevant documents Florence continues to rely upon were
before Judge Costa when, on November 18, 2013, he dismissed as frivolous Florence’s
conspiracy claim which included the alleged overt act that the Defendants “turned a blind eye

to the ‘fatally defective’ arrest warrant and imprisoned him unlawfully.” Florence may feel
Judge Costa was wrong to rely on Heck v. Humphrey, to dismiss this claim, but this Court
does not and it has no intention of setting Judge Costa’s Order aside.
Moreover, even if Heck had not specifically barred the false arrest claim, it barred the
other claims listed by Judge Costa and, in the absence of the conspiracy claim, it is clear that
the arresting officers would be protected from liability for the false arrest claim by qualified
immunity. Regardless of the Defendant’s personal motive in making an arrest, Whren v.
United States, 517 U.S. 806, 812-13 (2001), probable cause exists where the reasonable
conclusion to be drawn from the facts known to the arresting officer is that a valid warrant
exists for the plaintiff’s arrest. Cf. United States v. Roper, 792 F.2d 984, 989 (11th Cir.
1983) (Probable cause exists where officer learns of a probation violation arrest warrant’s
existence via radio transmission; citing, United States v. McDonald, 606 F.2d 552 (5th Cir.
1979)) Qualified immunity would exist even if the transmission later proved to be mistaken.
Cf. Duckett v. City of Cedar Park, Texas, 950 F.2d 272, 280 (5th Cir. 1992)
It is, therefore, ORDERED that Florence’s “Rule 60(b) Motion” (Instrument no. 199)
is DENIED.
DONE at Galveston, Texas, this

3rd

2

day of July, 2014.