Curtis et al v. McStravick et al

Filing 173

OPINION on Summary Judgment terminating 128 , 131 , 140 . (Signed by Judge Lynn N. Hughes) Parties notified. (ghassan, )

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Ronald Curtis, ct a!.,
Plaintiffs,

z;ersus
City of Houston, ct a[.,

Civil Action H.og-3 56g

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Defendants.

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Opinion
I.

Introduction.
Investigators used dogs to pick suspects' scents from several others to corroborate

circumstantial evidence against them. Three men have sued twelve parties for violating their
constitutional rights. They will recover from none.

2.

Background.

A.

Curtis.

Ronald Curtis was arrested for attempting to rob a cellular phone store in June of 2007
in Harris County. Around eleven o'clock that night, officers were notified that someone was
trying to break into the store. W h e n they arrived, they saw a car nearby belonging to Curtis.
T h e officers approached it and noticed a crow bar in the center console. W h e n they
returned from checking Curtis' identification, it had been moved to under the rear floorboard.
T h e door to the store was partially pried open, and the markings were nearly identical to the
bar found in his car. There were other tools in the car - a sledgehammer, bolt cutter, and tire
irons. T h e ground around the store's door was muddy and the concrete step in front of the
door had mud smudges; both Curtis and his passenger had mud on their shoes. Officers also
found two unopened cellular phones and a battery

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the brand sold at the store - in Curtis's

car, both unopened. The officers took Curtis and his passenger to the police station.

Curtis originally told the police that the tools were his, and that he and his passenger
had been working on cars before stopping at the restaurant next to the store to eat. He later
denied owning the tools. T h e passenger first told police that he had gone with Curtis to the
store to pay his bill. He later said that Curtis had driven to the store and had attempted to break
in. T h e magistrate ruled that there was no probable cause; both men were released that day.
Officer Strivers, a police officer for Houston, had been assigned to a string of robberies
of the same phone store chain. He received a photograph of Curtis and compared it with a
surveillance video from the other robbed stores. Based on this evidence, Strivers asked Keith
Pikett, a Deputy with the Fort Bend County Sheriffs Department, to conduct a dog scent
lineup using Curtis's scent. Strivers got scent swabs from the three robbed stores. Curtis
refused to voluntarily give a sample, but Strivers obtained it after having a subpoena issued.
Pikett got the swabs and did a dog scent lineup. It showed that Curtis's scent was at all three
stores.
W i t h this supplemental evidence - the videos and the lineups

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a magistrate found

probable cause to hold Curtis for the robbery. A few months later, the magistrate found
probable cause for the other robberies. Curtis was later released in April without a trial; he had
been in prison for eight months.

B.

Johnson and Bickham.

Jerome Perkins, Elaine Foster, and Barbara Bailey were found murdered in their home
in November of 2007. They had been shot in the head and the house had been set on fire.
Sargent W. Anthony and Officer R. Chappell work for the Houston Police and were assigned
to lead the investigation.
T h e officers found two guns and a charred gasoline can among the house's remains.
They traced the can to a nearby gas station. T h e station's surveillance video showed two people
buying it. T h e officers released still images from the video to the public asking for assistanceto
identify them.
In the weeks following the murder, Anthony and Chappell spoke with several witnesses
who identified one of the men in the video as Cedric Johnson, a maintenance man at an
apartment complex that Perkins had managed. People reported that the two men had frequently
argued. T h e officers met with Johnson and noticed that his body and tattoos resembled the
man in the video. Johnson said that he was at work at the time of the murder; his employer said

that he had gotten off work at three o'clock that afternoon, several hours before. His job site
was located directly across the street from the station where the can was bought.
T h e next month, Anthony and Chappell arrested Johnson for an outstanding traffic
warrant. They questioned him about the murders; he denied any involvement. After giving a
voluntary scent sample, he was released. T h e next day, the officers asked Pikett to conduct a
dog scent lineup usingJohnson's scent and the evidence found at the scene. The lineup showed
that his scent was on all three items. W i t h this evidence, the district attorney chargedJohnson
with two of the murders. A magistrate found probable cause to hold Johnson for the murders,
and a grand jury indicted him.

A few months after his arrest, Will Samuels, Johnson's cell mate, notified the district
attorney's office that Johnson had admitted the murders to him. Samuels gave details that were
known by only the investigators, eyewitnesses, and suspects. In April of 2008, Samuels met
with police and identified Curvis Bickham asJohnson's accomplice. Based on this information,
Anthony and Chappell conducted a dog scent lineup using Bickham's scent. T h e lineup
showed that his scent was on the revolver found at the scene. W i t h this evidence, the district
attorney charged Bickham with murder. He was indicted by a grand jury for two of the
murders.
Several months later, Anthony received a letter from Samuels saying that Bickham,
Johnson, and members ofJohnsons's gang had threatened and attacked him in prison. Four
months later, Samuels wrote several officers claiming that he - not Bickham andJohnson - had
committed the murders
Samuels later told Anthony that he was not the murderer. He said that he had
confessed to prevent further harassment while in prison. Chappell confirmed with Samuels's
employer that he had been working in Boston at the time of the murders, and a dog scent test
showed that his scent was not on the evidence. After Samuels confessed, the charges against
Johnson and Bickham were dropped, and they were released in May. Johnson had been in jail
for sixteen months; Bickham for seven.

3.

Procedure.
A year and a half after Curtis's release, and seven months after Johnson and Bickham's,

they sued every institution and officer who was tangentially related to their cases because the

dog scent lineups had been used. This included a city, a county, a sheriff, two police sergeants,
four police officers, and a sheriffs deputy:
City of Houston

E. Cisneros

Fort Bend County

J. Robles

Milton Wright

R. Chappell

M. McStravick

C. W. Strivers

W. Anthony

Keith Pikett

T h e state claims against McStravick, Anthony, Cisneros, Robles, Chappell, Strivers,
Wright, and Pikett were dismissed without prejudice in February of

2010.

McStravick and

Cisneros and Robles were dismissed with prejudice in September.

4.
- the

Pikett and the Dogs.
Curtis says that Pikett violated his constitutional rights by usingfabricatedjunkscience
dog scent lineups - to support the robbery charges against him. Pikett denies this and

says that he is immune.
T h e plaintiffs' lineups occurred in 2007. At that time, dog scent lineups were legally
viable, with or without additional evidence.' Prior to 2007, Texas courts had reviewed both
Pikett's experience and methodology. Based on his ~ e r s o n aqualifications, the qualifications
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of his dogs, and the objectivity of the lineups, courts recognized him as a dog scent lineup
expert and his reports were often used.
T h e Constitution does not require an error-free investigation

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negligence is not a

constitutional tort. It does not, however, protect officers who conduct reckless investigations
and ignore exculpatory evidence. ' Fabricating evidence denies the procedural safeguard
guaranteed to all people; it completely undermines the justice system.
T h e plaintiffs have not offered sufficient evidence to show that Pikettt's lineups were
fraudulent. First, the dogs were on a leash, and Pikett could have used it to cue them. Second,
the cans in the lineups were open, and Pikett could have possibly seen the scent pads inside and

S e e Robinsonv. Stats, No. 09.06-051,2006 W 3438076, at *4 v e x . Ct. App. Nov.
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29, 2006); Winston v. State, 78, S.W.jd 522, 527-28 v e x . Ct. App. Mar. 28, 2002).
Bibbins v. Ciy ofBaton Rouge, 489 F . Supp .2d 562 (M.D. La. 2007).
'

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determined which one belonged to the suspect. Third, the scents ranged from one to sixteen
months old, and they might have been too weak for the dogs to identify. These facts, however,
do not amount to a wrongdoing. Conclusory assertions founded on mere possibility do not
carry evidentiary weight.
Douglas Lowry, Curtis's expert, says that this information is sufficient to show that
Pikett manipulated the lineups. Although he is experienced with canines and manhunt
searches, Lowry has no training and has never conducted a dog scent lineup. He has twice
testified at trial about the unreliability of Pikett's method, and in both cases, the charges against
Pikett were dismissed.
T h e plaintiffs and Lowry have competing theories. T h e plaintiffs say that Pikett
watched someone assemble the lineup so that he knew before he conducted it which can had the
suspect's scent. Lowry says that Pikett looked down while he walked the dogs during the lineup
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that he could see inside the cans and determined during it which one had the scent pads.

Lowry also contradicts himself. He says that the dogs never actually gave an alert, yet he
accuses Pikett of cuing them to give an alert at the suspect's can.
Pikett denies knowing which scent pad belonged to Curtis and cuing the dogs. T h e
plaintiffs admit that, while dogs will not be successful all of the time, dog scent lineups may be
acceptable for inv~stigations.~
That Pikett has been wrong in a fraction of his lineups is not
evidence that he falsified results. Although Lowry makes a compelling argument about the
quality and accuracy of the lineups, Pikett's possible negligence or his dogs' possible mistakes
do not amount to a violation of constitutional rights.'
T h e plaintiffs contradict themselves by arguing that Pikett knowingly falsified the
results or, in the alternative, that he conducted ignorant, grossly unreliable lineups. They have
no facts to support their allegations - only animosity for dog scent lineups in general.
At the time of the lineups, Texas courts had consistently recognized Pikett's methods
and expertise as part of a reasonable investigation. T h e courts have only recently rejected the
use of dog scent lineups. Even if an innocent person had been convicted with unreliable
evidence, that would not change the legality of having used dog scent lineups in prior cases.
The plaintiffs have not shown that Pikett knowingly conducted unreliable or fraudulent lineups.

Dkt. 144at

2.

Their claims are conclusory and unsupported. Speculation - without facts - cannot bridge the
gap between the their assertions and reality.

5.

Stivcrs.
Curtis says that Stivers helped fabricate evidence to unlawfully arrest and prosecute

Curtis. Stivers denies this and says that he is entitled to immunity.

A.

lmmuniy.

Stivers and Pikett have consistently denied that the lineups were fraudulent. Stivers
knew that the courts had recognized Pikett as an expert in dog scent lineups since 2002, and
that his lineup results and testimony had been used by others. Stivers had personally used
Pikett in two other cases and was able to obtain convictions.
Vic Wisener, assistant district attorney from 1987 to 2007, says that he had notified
the police in Houston that "dog scent lineups and their mastermind, Defendant Pikett, were
a fraud." He also sent an eFmail with a similar message to all prosecutors. No letter to the
Houston Police Department has been produced and, upon review, the message to the
prosecutors mentions only two officers who are not defendants in this case. It says nothing
about Pikett or the scent line-ups.j T h e plaintiffs have offered no evidence - only their own
self-serving statements - to support their claims.
Stivers did not violate anyone's rights when he asked Pikett to help him "close" the
case. He is a police officer

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it is his job to solve cases. A police force could not function

without reasonable reliance on the statements and efforts of

other^.^

Dog scent lineups were

legally recognized as a reasonable step in an investigation. Stivers acted fully within his rights
as an officer when he requested a lineup using Curtis's scent. No evidence supports Curtis's
assertions that Stivers knew that the lineups were fraudulent, that this was the reason Stivers
sought out Pikett's assistance, or that Stivers knew that the scent evidence collected for the
lineup had been contaminated or degraded beyond use.
Because there is no evidence that the otherwise legal scent lineups were falsified or
fraudulent, Curtis has not asserted a constitutional violation.

Dkt. 89, Ex.
6

2.

Whitely v. Warden, 401 U.S. 560, 568 ( 1 ~ ~ 1 ) .
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B.

Breaking the Cbain.

Curtis has not shown that it was unreasonable to request a warrant for his arrest. The
facts show the opposite

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the district attorney accepted the complaints against Curtis, a

magistrate found probable cause against him, and two grand juries issued indictments against
him.
Curtis was not indicted on the dog scent lineup alone. He was first arrested in the
parking lot of a phone store around the time of the attempted robbery. He was carrying a
crowbar similar to the size of the one used to pry open the store door. He had an extensive
criminal record, and Stivers believed that he resembled the robber caught on the videotape
robbing another phone store.
Curtis has contested only his resemblance to the man on the tape, saying that Stivers
lied about it. This is not evidence - it is a diversion of personal opinions. Stivers was not the
only one to find a resemblance. Stills taken from the video and Curtis's photo were shown to
the district attorney, magistrate, and grand juries. T h e evidence identified by Striver and the
findings of these intermediaries insulate him from Curtis's claims.

6.

Anthony G Chappel!.
.

A.

Immunity.

Johnson and Bickham say that officers Anthony and Chappell conspired together to
knowingly use Pikett's "junk science" to frame them for the murders. T h e officers deny this.
They say that the lineups were valid and viable, and they claim immunity.
T h e law on dog scent lineups in Texas in zoo7 and zoo8 was consistent and clear they were an acceptable step in an investigation, and Pikett was a recognized expert in
conducting them. Johnson and Bickham have not shown any evidence that Anthony and
Chappell knew that Pikett's lineups were fraudulent or that they conspired to do - or did anything to falsify their results. Although Johnson and Bickham say that Wisener told the
officers that Pikett's lineups were a fraud, they have offered no evidence that Wisener, or
anyone else, advised the officers of this. Both officers admit they were not trained in scent
lineups, but speculating about what they should have known about the age and the utility of the
scent samples is not evidence.
Johnson says that he looks nothing like the still taken from the video. Johnson is five
feet, seven inches and weighs 265 pounds. One man in the shot is clearly not him - the man

is tall and skinny; the other is shorter and heavy set. It is reasonable that the officers saw a
resemblance between the second man and Johnson. A police force could not function if its
officers could not rely on their ~ e r s o n ajudgment. Saying that there is no resemblance is not
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sufficient evidence to undermine Anthony and Chappell's decision.

B.

Coerced Testimony.

Johnson and Bickham say that the officers coerced Samuels into implicating them in the
murder and corroborated the results of the dog scent lineups. They have no evidence to
support their accusations. T h e officers did not perform a lineup of Bickham's scent until after
they had spoken with Samuels. Their claim that his testimony was coerced to corroborate the
lineup is fatally flawed. Samuels contacted the district attorney saying that he wanted to speak
with him, and his lawyer was present every time he met with the officers.
W h e n Samuels later recanted his statements and confessed to the murders himself, he
told the investigators and the district attorney that he was only confessing because he had been
repeatedly assaulted in prison for talking about Johnson. His reasons for rescinding his
statements are irrelevant. His confession

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not the dog scent lineups or their arrests -

prompted Johnson and Bickham's release.

C.

Breaking tbc Chain.

Based on the witnesses, photos, and dog scent lineups

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and for Johnson, his

inconsistent alibi - it was reasonable for Anthony and Chappell to request warrants forJohnson
and Bickham. They have offered no evidence that the officers knew that the lineups were
fraudulent or coerced incriminating testimony from witnesses.
T h e district attorneys for Harris County accepted the complaints against Johnson and
Bickham, two magistrates found probable cause against them, and two grand juries issued their
indictments. T h e actions of these intermediaries broke the causal chain, insulating Anthony
and Chappell from liability.

7.

Houston & Fort Bend.

The

la in tiffs say that the Sheriffs Office in Fort Bend County violated their rights by

having a policy that allows for wrongful arrests and convictions on "profoundly flawed

investigations and fabricated evidence."' They say that Houston is liable because its deliberate
indifference allowed this policy to flourish under its police department and its officers.

A.

Policy.

T h e h la in tiffs have offered no evidence - only baseless suspicions

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to support their

accusations against the city and the county. Chief Michael Dirden, an executive assistant for
the Houston Police Department, and Gregg Bisso, a senior officer, say that the department
neither trained officers to conduct dog scent lineups nor did it have a policy for using them
during investigations. Its only official canine policy involves dogs who track people.'
The plaintiffs say that the absence of a policy or procedure on dog scent lineups
training or a mechanism for oversight or punishment

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- on

is itself evidence of such an ad hoc

policy. This argument is wholly without merit. Under that logic, the absence of a policy
against any wrongdoing would be an implicit endorsement. It is illegal for officers to falsify
evidence - to force police departments to have individual official policies against every form of
illegal conduct for municipalities to escape liability for misconduct would be both absurd and
redundant.
Although Dirden and Bisso admit that some officers used dog scent lineups in
investigations - predominately to corroborate other findings - the plaintiffs' claims are limited
to a policy of usingfraudulcnt or knowingb unreliable lineups. There is no quantitative evidence
to show how often scent lineups were used, and a complete lack of evidence that fraudulent or
inaccurate lineups were ever used intentionally in this or any other case. Without evidence of
such a policy, de facto or formal, the city and county cannot be liable.

B.

Damages.

Even if the plaintiffs had shown the existence of such a policy, they are not entitled to
damages when there is no proof of a violation of a constitutional right.g Stivers did not violate
Curtis's rights, and Anthony and Chappell did not violate Johnson's and Bickham's rights.

' Dkt. 140 at 10.
Dkt. 140, Ex. 13 at 2-3; 14 at

1-2.

Ciy of Los Angelcs v. Hcller, 475 U.S. 796, 799 (1986).
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8.

Wright.
Sheriff Milton Wright was not personally involved in the incidents that led to this

lawsuit. The plaintiffs have not shown any specific facts about Wright's personal involvement
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he encouraged a policy of using dog sniff lineups, fraudulent or otherwise

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than

the recitation of his official title. Without this showing, they cannot sustain an individual
capacity claim premised upon vicarious liability or respondeat superior.
T h e plaintiffs say that Wright's lack of oversight of Pikett was tantamount to
enforcing a policy of fraudulent lineups. It is illegal to fabricate evidence. A valid police policy
could not violate the law. It was not necessary for Wright to have an explicit policy expressing
this for every investigatory tool - Pikett, and every other police officer, was aware that falsifying
evidence during an investigation was illegal. Even if the plaintiffs had proven that Wright
enforced a de facto dog scent lineup through his lack of oversight, they still have not shown any
evidence that the lineups were fraudulent or falsified.

9.

Discovery.
This complaint was filed in November of 2009 - it was vague and wholly

unsubstantiated. Since filing, the

lai in tiffs have not offered one shred of evidence to support

their claims. Allegations are not equivalent to facts. They have cited to pages and pages of case
law with elaborate quotations in place of actual evidence. They have attacked officials for their
subjective opinions as if they were rebuttable facts vulnerable to objective scrutiny.
T h e plaintiffs say that their Rule j6(d) affidavit establishes a right to discovery before
the adjudication of the sufficiency of the evidence. They say that this rule applies because the
defendants have suppressed incriminating evidence about the falsification of evidence and its
intentional use against innocent people.

Their allegations are wholly conclusory and

completely mischaracterize the intension of the rule. T h e plaintiffs are attempting to support
their speculatory claim with further speculatory claims - enough is enough. Rule 56(d) is
intended for situations where the non.moving party, for specified reasons, is unable to present
essential facts and requires supplemental time for discovery. It is not meant to prolong
discovery indefinitely, especiallywhen, as here, the plaintiffs' claims were completely unfounded
to begin with.

A party must be given a full and fair opportunity to discover essential information. T h e
plaintiffs say that they cannot support their claims with actual facts because they have not been

allowed to conduct discovery. This is simply not true. They have been granted ample
discovery:
Copies of Houston's homicide investigative report in chambers
Video of Johnson's dog scent lineup
Still and videotapes of the convenience store purchases and glossies of the
crime scene photographs with the gasoline can
Un-redacted copy of the homicide investigative report, including continued
investigation notes after the plaintiffs were released from jail
List of cases in which Chappell had used dog scent lineups, eFmails between
he and Pikett concerning the lineups, the information provided to Chappell
by Pikett about his lineups
List of cases in which Anthony had used dog scent lineups
Audiotaped and transcribed copy of Samuel's statement, his letter to the
Chief of Police, his criminal history, his earning statement, and his letters
to the Harris County prosecutor
All e,mails between Pikett and members of the Houston Police Department
for a specific period of time
Affidavits of Anthony and Chappell about their use of dog scent lineups
Affidavits of Bisso and Dirden about their knowledge of dog scent lineups
and Pikett and their certification records
Videotape of Bickham's dog scent lineup
List of all dog scent lineups occurring in the Homicide Division,
Investigative Response Division, Robbery Division, and Burglary and Theft
Division of the Houston Police Department
Compilation report of other divisions within the Houston Police
Department for a specific period of time
T h e plaintiffs have had sufficient opportunity for discovery; they have come up empty
handed. They have also not offered a plausible reason why they could not identify the other
officers who they say were involved in the alleged misconduct. Simply speculating that there
are other officers is not sufficient. T h e plaintiffs have had the opportunity to conduct
meaningful discovery; no further discovery will be granted.

10.

Conclusion.
Ronald Curtis, CedricJohnson, and Curvis Bickham have no evidence to support their

accusations. Ronald Curtis, Cedric Johnson, and Curvis Bickham will take nothing from W .
Anthony, R. Chappell, C.W. Stivers, Milton Wright, Keith Pikett, Fort Bend County, and the
City of Houston.

Signed on December I 8, 201 I, at Houston, Texas.

Lynn N ~ u g h L s
I
United States District Judge