Wyatt v. Anderson et al
Filing
63
ORDER ADOPTING 54 Report and Recommendation; DENYING 39 Motion for Partial Summary Judgment; GRANTING 42 Amended Motion for Summary Judgment; DENYING 61 Motion to Quash; Plaintiff Marc Wyatt's 33 Amended Complaint, with respect to t he claims brought against the Bastrop County Sheriff's Office, Matthew Vernon, and Robert Madden Industries, is DISMISSED WITH PREJUDICE for failure to state a claim upon which relief can be granted pursuant to 28 U.S.C. § 1915(e). Signed by Judge Sam Sparks. (kkc)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TEXAS
AUSTIN DIVISION
20I1t FEB 20
P11
3:514
.
-
TEXAS
MARC WYATT #1853251,
Plaintiff,
Case No. A-13-CA-191-SS
-vs-
ROBERT ANDERSON, JAMES DAVENPORT,
MATTHEW VERNON, ROBERT MADDEN
INDUSTRIES, and BASTROP COUNTY
SHERIFF'S OFFICE,
Defendants.
ORDER
BE IT REMEMBERED on this day the Court reviewed the file in the above-styled cause, and
specifically Plaintiff Marc Wyatt's Amended Complaint [#33]; Plaintiff Mark Wyatt's Motion for
Partial Summary Judgment [#3 9], and Defendants Robert Anderson and James Davenport's
Response [#40]; Defendants Robert Anderson and James Davenport's Amended Motion for
Summary Judgment [#42], and Plaintiff Marc Wyatt's Response [#51]; the Report and
Recommendation of the United States Magistrate Judge [#54], and Plaintiff Marc Wyatt's Objections
[#59]; Plaintiff Marc Wyatt's Objection to Text Order Denying Motion to Stay [#56], and Plaintiff
Marc Wyatt's Objection to the Denial for Stay ofDefendant's Motion for Summary Judgment [#58];
Defendants Robert Anderson and James Davenport's Motion to Quash [#61]; and Plaintiff Marc
Wyatt's Motion in Opposition to Defendants' Motion to Quash [#62].
Having reviewed the
documents, the relevant law, and the file as a whole, the Court now enters the following opinion and
orders.
I
All matters in this case were referred to United States Magistrate Judge Mark Lane for report
and recommendation pursuant to 28 U.S.C. § 636(b) and Rule 1 (f) of Appendix C of the Local Court
Rules of the United States District Court for the Western District of Texas, Local Rules for the
Assignment of Duties to United States Magistrate Judges. Wyatt is entitled to de novo review of the
portions of the Magistrate Judge's report to which he filed specific objections. 28 U.S.C.
§
636(b)(1). All other review is for plain error. Douglass
v.
United Servs. Auto. Ass
'n,
79 F.3d
1415, 1428-29 (5th Cir. 1996) (en banc). Nevertheless, this Court has reviewed the entire file de
novo, and agrees with the Magistrate Judge's recommendation.
Background
At the time he filed his original complaint, Plaintiff Marc Wyatt was confined in the Lee
County Jail. He was subsequently transferred to the Eastham Unit of the Texas Department of
Criminal Justice, Correctional Institutions Division. Wyatt files this action pursuant to 42 U.S.C.
§
1983, alleging Bastrop County Investigator Robert Anderson and Bastrop County Deputy James
Davenport falsified evidence to place Wyatt at the scene of a burglary on March 31, 2011, at Robert
Madden Industries. Wyatt alleges Anderson used known false statements and tainted evidence to
secure a warrant for his arrest, and later used false evidence and false statements before a grand jury
to obtain an indictment.
Wyatt claims Anderson intentionally withheld evidence showing
fingerprints found at the crime scene did not belong to Wyatt. Wyatt contends Anderson and
Davenport are responsible for his false arrest, which caused Wyatt emotional and mental stress,
monetary loss, and false imprisonment. Wyatt also accuses Matthew Dale Vernon, manager of
Robert Madden Industries, of conspiring with the Bastrop County Sheriffs Office to deprive Wyatt
of his civil rights.
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Wyatt sues Robert Anderson, James Davenport, Robert Madden Industries, Matthew Dale
Vernon, and the Bastrop County Sheriff's Office, and he seeks $100,000 from each Defendant.
Service has been perfected as to Defendants Anderson and Davenport, and the remaining Defendants
have not been served.
Wyatt moves for a partial summary judgment against Anderson, arguing Anderson knowingly
and intentionally made false statements to an independent intermediary in order to obtain an arrest
warrant. He concludes the intermediary lacked probable cause to issue the arrest warrant. In
response, Defendants Anderson and Davenport assert their entitlement to qualified immunity, and
deny Wyatt is entitled to a motion for partial summary judgment. In addition, they move for
summary judgment, arguing the arrest warrant issued by the judge and the indictment issued by the
grand jury establishes probable cause, and breaks the chain of causation. They rely on Shields
v.
Twiss, 389 F.3d 142, 150 (5th Cir. 2004) and Taylor v. Gregg, 36 F.3d 453, 456 (5th Cir. 1994).
According to Anderson, he was the lead investigator assigned to the burglary of Robert
Madden Industries, a supply store for heating and air conditioning companies. The store was
burglarized on March 31, 2011, at 2:51 a.m. HVAC equipment was stolen at a value of$1,778.28.
As part of his investigation, Anderson reviewed the reports of the Bastrop County Deputies, who
responded to the burglary call as well as the evidence collected at the crime scene.
Bastrop County Deputies James Miller, Brandon Horak, Adrian Selvera, and Raul Delgado
responded the night of the burglary. Upon arrival, the deputies documented the crime scene,
including lifting fingerprints off a plastic tube, cleared the building, and waited for the arrival of the
property owner. They later met with Matthew Vernon, the branch manager of the store, who arrived
at the scene after the deputies. The next morning Defendant Davenport, another Deputy, went to the
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scene of the burglary to identify its location. Upon arrival, Vernon gave Davenport a Wal-Mart
receipt. Vernon stated he found the receipt in one of two trash cans found on the side of the
building, which had not been there the night before around 8:00 or 9:00 p.m. when Vernon and his
workers left for the night. Vernon did not know where they came from or how they got there. The
receipt indicated they had been purchased at midnight the night before, along with a Dr. Pepper.
Davenport, through his education, training, and experience, knew burglars commonly use large
containers to hold and transport stolen property more quickly. Davenport suspected the burglars
used the trash cans for the burglary, and then discarded them without realizing the receipt was left
in the bottom of one of the trash cans. Davenport noted the receipt indicated the trash cans had been
purchased with a Visa card. Davenport secured the trash cans and the receipt as evidence, and the
trash cans for fingerprint processing.
Investigator Anderson later contacted the Wal-Mart Manager and learned the Visa card used
to purchase the trash cans and Dr. Pepper belonged to Wyatt. Anderson attests he reviewed a video
from Wal-Mart, depicting Wyatt purchasing two large trash cans and a Dr. Pepper on March 30,
2011, near midnight. Anderson estimated the trash cans were purchased by Wyatt approximately
two and a half hours before the Robert Madden Industries burglary.
With this evidence, Anderson contacted Wyatt and met with him on April 7, 2011, at a
Criminal Investigation Division interview room. Upon meeting with Wyatt, Anderson confirmed
in his mind Wyatt was the person in the video purchasing the trash cans. Wyatt filled out the top
portion of the voluntary statement and was given his Miranda warnings. According to Anderson,
when he advised Wyatt of the trash can purchase, Wyatt denied purchasing them. When shown the
video, Wyatt allegedly admitted purchasing the cans but refused to admit he was the person on the
El
video. When shown the receipt, Wyatt allegedly admitted his credit card was used, his signature was
on the receipt, and the credit card had never left his possession. Anderson attests Wyatt became
evasive and confrontational, but he admitted he owned an HVAC business and had been to Robert
Madden Industries on previous occasions.
Anderson asserts Wyatt admitted his prior criminal history of thefts could lead someone to
believe he committed the burglary, but he denied it was him. Based on Wyatt's admission and his
prior deceptive statements, Anderson felt Wyatt had a motive to steal the HVAC equipment.
Anderson admits he prepared and submitted a probable cause affidavit to Justice of the Peace Judge
Raymah Davis, who reviewed it, found probable cause, and issued a warrant for Wyatt's arrest.
Anderson denies there was any fabrication or falsification of evidence in his investigation.
In his Motion for Partial Summary Judgment and his Response to Defendants' Motion for
Summary Judgment, Wyatt gives his version of the events. Among other things, he states on
April 7, 2011, when he was interviewed by Anderson, he refused to waive his rights and requested
an attorney. Wyatt claims, despite his request, Anderson continued to question him regarding the
burglary. To prove Anderson fabricated or falsified the evidence, Wyatt points out the trash cans
were purchased at 11:57 p.m. on March 30, 2011, almost three hours before the burglary. Wyatt
contends Anderson was dishonest because his affidavit in support of his request for an arrest warrant
stated the two trash cans were found at the scene of the crime two and half hours after the purchase
when in fact the trash cans were not found by Vernon until he returned to Robert Madden Industries
the following morning. Wyatt also argues the evidence report states green trash cans were found at
the crime scene, but Defendants describe the trash cans as "dark colored" or "black." Wyatt also
contends Davenport's affidavit submitted in support of Defendants' Motion for Summary Judgment
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is misleading because Davenport combined Vernon's two statements: (1) "He and his workers left
the building at about 8:00 pm or 9:00 pm last night so none of them could have left them" and (2)
"that when it got daylight he noticed a couple of trash cans on the side of the building that were not
there the night before" into a statement which provided "Mr. Vernon informed me that the trash cans
had not been at the location the night before when his employees left at 9:00 pm." Wyatt also
contends the evidence was falsified because Davenport's statements refer to the receipt as a "Wa!-
Mart receipt," but Anderson in his affidavit for an arrest warrant referred to it as a "Visa Credit Card
receipt." Wyatt also refutes Anderson's statement that Wyatt denied purchasing the trash cans.
Wyatt instead states he told Anderson he could not remember purchasing the trash cans. Wyatt
additionally denies he admitted his prior history of thefts could lead someone to believe he
committed the burglary.
Analysis
I.
Legal Standards
A.
28 U.S.C. § 19 15(e)
Service has not been perfected as to Defendants Bastrop County Sheriff's Office, Matthew
Vernon, and Robert Madden Industries. Accordingly, the Court will analyze Wyatt's claims brought
against these Defendants pursuant to 28 U.S.C.
§ 19 15(e).
An in forma pauperis proceeding may be dismissed sua sponte under 28 U.S.C.
1915(e)
§
if the court determines the complaint is frivolous, malicious, fails to state a claim upon
which relief
may be granted or seeks monetary relief against a defendant who is immune from suit. A dismissal
for frivolousness or maliciousness may occur at any time, before or after service of process and
before or after the defendant's answer. Green
v.
McKaskle, 788 F.2d 1116, 1119 (5th Cir. 1986).
When reviewing a plaintiff's complaint, the court must construe the plaintiff's allegations as liberally
as possible. Haines v. Kerner, 404 U.S. 519 (1972). Petitioner's pro se status, however, does not
offer him "an impenetrable shield, for one acting pro se has no license to harass others, clog the
judicial machinery with meritless litigation and abuse already overloaded court dockets." Farguson
v.
MBank Houston, NA., 808 F.2d 358, 359 (5th Cir. 1986).
B.
Summary Judgment
Summary judgment shall be rendered when the pleadings, the discovery and disclosure
materials on file, and any affidavits show that there is no genuine dispute as to any material fact and
that the moving party is entitled to judgment as a matter of law.
Corp.
v.
Catrett, 477 U.S. 317, 323-25 (1986); Washburn
v.
FED. R. Civ. P.
56(a); Celotex
Harvey, 504 F.3d 505, 508 (5th Cir.
2007). A dispute regarding a material fact is "genuine" if the evidence is such that a reasonable jury
could return a verdict in favor of the nonmoving party. Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 248 (1986). When ruling on a motion for summary judgment, the court is required to view all
inferences drawn from the factual record in the light most favorable to the nonmoving party.
Matsushita Elec. Indus. Co.
v.
Zenith Radio, 475 U.S. 574, 587 (1986); Washburn, 504 F.3d at 508.
Further, a court "may not make credibility determinations or weigh the evidence" in ruling on a
motion for summary judgment. Reeves
v.
Sanderson Plumbing Prods., Inc., 530 U.S. 133, 150
(2000); Anderson, 477 U.S. at 254-55.
Once the moving party has made an initial showing that there is no evidence to support the
nonmoving party's case, the party opposing the motion must come forward with competent summary
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judgment evidence of the existence of a genuine fact issue. Matsushita, 475 U.S. at 586. Mere
conclusory allegations are not competent summary judgment evidence, and thus are insufficient to
defeat a motion for summaryjudgment. Turner v. Baylor Richardson Med. Ctr., 476 F.3d 337, 343
(5th Cir. 2007). Unsubstantiated assertions, improbable inferences, and unsupported speculation are
not competent summary judgment evidence. Id. The party opposing summaryjudgment is required
to identify specific evidence in the record and to articulate the precise manner in which that evidence
supports his claim. Adams
v.
Travelers Indem. Co. of Conn., 465 F.3d 156, 164 (5th Cir. 2006).
Rule 56 does not impose a duty on the court to "sift through the record in search of evidence" to
support the nonmovant's opposition to the motion for summaryjudgment. Id. "Only disputes over
facts that might affect the outcome of the suit under the governing laws will properly preclude the
entry of summary judgment." Anderson, 477 U.S. at 248. Disputed fact issues that are "irrelevant
and unnecessary" will not be considered by a court in ruling on a summary judgment motion. Id.
If the nonmoving party fails to make a showing sufficient to establish the existence of an element
essential to its case and on which it will bear the burden of proof at trial, summary judgment must
be granted. Celotex, 477 U.S. at 322-23.
II.
Application
A.
Defendant Bastrop County Sheriff's Office
The Bastrop County Sheriff's Office is not a legal entity capable of being sued. See Darby
v.
Pa. Police Dep 't, 939 F.2d 311 (5th Cir. 1991) (holding police and sheriff's departments are
governmental subdivisions without capacity for independent legal action); Guidry v. Jefferson Cnty.
Detention Ctr., 868 F. Supp. 189, 191 (E.D. Tex. 1994) (holding the Jefferson County Detention
Center is not a legal entity subject to suit). Therefore, Wyatt's claims against this Defendant must
be dismissed.
B.
Defendants Matthew Vernon and Robert Madden Industries
Matthew Vernon and Robert Madden Industries, the victims of the burglary, are not state
actors. The provisions of 42 U.S.C.
§
1983 state every person who acts under color
of state law to
deprive another of constitutional rights shall be liable to the injured party. A civil rights plaintiff
must show an abuse of government power which rises to a constitutional level in order to state a
cognizable claim. Love v. King, 784 F.2d 708, 712 (5th Cir. 1986); Williams v. Kelley, 624 F.2d 695,
697 (5th Cir. 1980). Section 1983 suits may be instituted to sue a state employee, or state entity,
using or abusing power which is possessed by virtue of state law to violate a person's constitutional
rights. See Monroe
v.
Pape, 365 U.S. 167, 184 (1961); accord Brown
v.
Miller, 631 F.2d 408,
410-11 (5thCir. 1980).
A private person may be amenable to suit only when the person is a willful participant in
joint action with the State or its agents. Dennis v. Sparks, 449 U.S. 24, 27 (1980). To prevail on a
§
1983 conspiracy claim against an otherwise private party, the plaintiff must allege and prove an
agreement between the private party and persons acting under color of state law to commit an illegal
act and an actual deprivation of the plaintiff's constitutional rights in furtherance of the agreement.
See Hale v. Townley, 45 F.3d 914, 920 (5th Cir. 1995). "Allegations that are merely conclusory,
without reference to specific facts, will not suffice." Priester v. Lowndes Cnty., 354 F.3d 414, 420
(5th Cir. 2004). More particularly, where the plaintiff claims a private party acted under color of law
as part of a conspiracy to effect an unlawful arrest, the Fifth Circuit has consistently held the plaintiff
must demonstrate "the police in effecting the arrest acted in accordance with a 'preconceived plan'
to arrest a person merely because he was designated for arrest by the private party." Sims v.
Downs Racing Ass 'n,
Inc.,
Jefferson
778 F.2d 1068, 1079 (5th Cir. 1985).
Wyatt's conclusory allegation that Matthew Vernon conspired with Bastrop County Sheriffs
Office to deprive Wyatt of his civil rights is insufficient to allege there has been a conspiracy to
violate his constitutional rights.
See Twombly,
550 U.S. at 555 ("The pleading must contain
something more than a statement of facts that merely creates a suspicion of a legally cognizable right
of action."). The factual basis of Wyatt's claims against Vernon and Robert Madden Industries
appears to be Vernon notified Davenport he found trash cans at the scene of the crime which had not
been at Robert Madden Industries the night before, and a receipt was in the bottom of one of the
cans.
Even when liberally construed in Wyatt's favor, these facts do not allow the Court to
reasonably draw an inference that Vernon or Robert Madden Industries willfully acted in concert
with Anderson and Davenport to effect an unconstitutional arrest of Wyatt.
In his Objections, instead of providing any basis for suit against these private actors, Wyatt
suggests Vernon may actually be a "fictitious person" because the U.S. Marshal summons form
indicates the individual who went to serve Matthew Vernon at 704 W. Highway 71 could not
identify or locate Vernon. Also, Wyatt points out he has been provided no proof Vernon ever filed
a complaint or a property loss form, and all statements allegedly filed by Vernon have not been
disclosed to Wyatt. Needless to say, suggesting Vernon is not real does not demonstrate Vernon
acted in concert with the State or its agents to deprive Wyatt of his constitutional rights.
Next, Wyatt argues Vernon, when he told Davenport about the trash cans, said he did not
know where they came from, but Wyatt contends if Vernon had the Wal-Mart receipt, as
Davenport's report indicates, then he would know where the trash cans came fromWal-Mart.
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Wyatt's reading of Davenport's report and record of Vernon's statements are strained at best.
Vernon was merely telling Davenport these trash cans were not there the night before when he and
his workers left. When he found them the next morning, he did not know who they belonged to or
how they got to side of the building outside Robert Madden Industries. When he found the WalMart receipt and gave it to Davenport, of course he knew technically "where they came from," but
the point was he did not know who brought them there and why. The fact remains Wyatt only makes
conclusory allegations insufficient to support even a suspicion of a legally cognizable right of action
concerning Matthew Vernon and Robert Madden Industries.
In sum, Wyatt's amended complaint does not allege specific facts to support a finding Vernon
or Robert Madden Industries were willful participants in joint activity with the State or its agents.
Accordingly, Wyatt's claims brought against Defendants Vernon and Robert Madden Industries must
be dismissed with prejudice for failure to state a claim upon which relief can be granted pursuant to
28 U.S.C.
C.
§
1915(e).
Defendants Robert Anderson and James Davenport
Defendants Anderson and Davenport assert their entitlement to qualified immunity. The
doctrine of qualified immunity affords protection against individual liability for civil damages to
officials "insofar as their conduct does not violate clearly established statutory or constitutional rights
ofwhich a reasonable person would have known." Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982).
Immunity in this sense means immunity from suit, not merely from liability. Jackson
v.
City
of
Beaumont, 958 F.2d 616 (5th Cir. 1992). "[Q]ualified immunity is designed to shield from civil
liability 'all but the plainly incompetent or those who violate the law." Brady
v.
Fort Bend Cnty.,
58 F.3d 173, 174 (5th Cir. 1995) (quotingMalley v. Briggs, 475 U.S. 335, 341 (1986)).
-11-
To rebut the qualified immunity defense, the plaintiff must show: (1) he has alleged a
violation ofa clearly established constitutional right, and (2) the defendant's conduct was objectively
unreasonable in light of clearly established law at the time of the incident. Waitman v. Payne, 535
F.3d 342, 346 (5th Cir. 2008). To negate a defense of qualified immunity and avoid summary
judgment, the plaintiff need not present "absolute proof," but must offer more than "mere
allegations." Reese v. Anderson, 926 F.2d 494, 499 (5th Cir. 1991).
For several years, the Supreme Court required the first of these criteriawhether plaintiffs
facts allege a constitutional violationbe decided at the outset. See Saucier v. Katz, 533 U.S. 194,
201 (2001). Recently, however, the Court held lower courts "should be permitted to exercise their
sound discretion in deciding which of the two prongs of the qualified immunity analysis should be
addressed first in light of the circumstances in the particular case at hand." Pearson v. Callahan, 555
U.S. 223, 236 (2009).
1.
False Arrest
First, Defendants Anderson and Davenport incorrectly argue the arrest warrant signed by the
judge and the indictment issued by the grand jury broke the chain of causation for false arrest in this
case. Wyatt, though, argues the evidence shows Anderson fabricated and falsified the information
in his probable-cause affidavit, and presented falsified and fabricated evidence to the grand jury.
To prevail on his claim Anderson prepared a false probable-cause affidavit, Wyatt would be
required to show Anderson knowingly provided false information to secure the arrest warrant or gave
false information in reckless disregard of the truth. See Franks
(1978). The arrest may still be constitutionally valid
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if,
v.
Delaware, 438 U.S. 154, 171
when the allegedly false or malicious
material in a probable-cause affidavit is excised, sufficient material remains in the affidavit to
support a finding of probable cause. Id. at 17 1-72.
Probable cause exists when the facts within the officer's knowledge and the facts of which
he has reasonably reliable information would be sufficient to believe the suspect was committing or
had committed an offense. US.
v.
Morris, 477 F.2d 657, 663 (5th Cir. 1973). In deciding whether
probable cause exists, police officers are not required to be perfect, nor do they have to err on the
side of caution "out of fear of being sued." Martin v. Thomas, 973 F.2d 449, 453 (5th Cir. 1992).
The Court examines the totality of the circumstances to decide "whether there is a 'fair probability
that a crime occurred." US.
v.
Garcia, 179 F.3d 265, 269 (5th Cir. 1999) (citation omitted). A
"requisite 'fair probability' is something more than a bare suspicion, but need not reach the fifty
percent mark." Id.
In this case, the probable-cause affidavit included Wyatt "denied having any knowledge
buying the trash cans." Excising the statement Wyatt denied having knowledge of the purchase does
not alter the conclusion probable cause existed. It is also immaterial if the receipt is referred to as
a Visa credit card receipt or a Wal-Mart receipt. The affidavit also included the trash cans were
found at the scene of the crime two and half hours after the purchase when instead they were found
later in the morning at daylight. Excising "2
Y2
hours" from the affidavit also does not defeat
probable cause. The remaining information in the affidavit was sufficient to support a finding of
probable cause for Wyatt's arrest. See Hale v. Fish, 899 F.2d 390, 399 (5th Cir. 1990).
In his Objections, Wyatt urges and re-urges his arguments concerning the falsity of various
portions of Anderson's affidavit in support of an arrest warrant. First, Wyatt challenges Anderson's
statement, "On 03-31-2011, Matthew Vernonmade areport ofBurglaryofaBuilding, that occurred
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at 704 Hwy. 71 W. Unit C, in Bastrop County, to Deputy Brandon Horak of the Bastrop County
Sheriffs Office." Wyatt alleges Vernon never filed any report. Whether Vernon filed a report or
not, there is no dispute a burglary occurred. In Deputy Horak's report, he states, "On March 31,
2011 at approximately 2:59 a.m., I was dispatched to 704 Unit C HWY 71 in reference to a burglary
alarm. I was advised that the company name was Robert Madden Industries." Whether there was
an actual report from Vernon is not clear, but it is immaterial. The point is there was a burglary.
Excising the statement "Vernon made a report of Burglary of a Building" does not change the
probable cause determination.
In addition, Wyatt also challenges Anderson's statement he "learned from the complainant
[Vernon], information on the possible suspect in this 'Burglary' case." Wyatt argues Anderson never
actually met with Vernon, but it was Davenport who learned about the trash cans and receipt from
Vernon. The summary judgment evidence shows it was Davenport who actually met with Vernon,
and then Davenport recorded what he found in his report and submitted the trash cans and receipt
as evidence. Anderson learned ofthe trash cans and receipt through Davenport's report, so the Court
can see how the statement Anderson "learned from the complainant" could be misleading. It is
irrelevant, however, whether Anderson learned the information directly from Vernon or indirectly
through Davenport. While Anderson's affidavit maybe inartfully written and abit confusing, he is
not required to be perfect. Excising Anderson's assertion he learned of information "from the
complainant" does not change the conclusion probable cause existed.
Wyatt re-urges his objection concerning the mixed use of the terms "Visa credit card receipt"
and "Wal-Mart receipt." Wyatt suggests the "Wal-Mart receipt" is the common receipt given to
customers while the "Visa credit card receipt" is retained by Wal-Mart. Therefore, the receipt found
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in the trash can must have been the "Wal-Mart receipt," and when it was referred to as the "Visa
credit card receipt," this must have been false. Again, the Court finds it irrelevant whether the
receipt found in the trash can is referred to as the "Wal-Mart receipt" or the "Visa credit card
receipt." Both receipts contain information indicating there was a purchase from Wal-Mart with a
Visa credit card. Referring to them interchangeably, while perhaps technically incorrect according
to Wyatt's contentions regarding receipt policies, is perfectly reasonable. More importantly, it is
irrelevant. The point is a receipt was found in the trash can reflecting a purchase with a Visa credit
card at Wal-Mart. This receipt led Anderson to the Wal-Mart manager, to the credit card owner's
identity (Wyatt), and to the camera footage (confirming it was Wyatt who made the purchase). This
chain of events is more than sufficient for a probable cause finding.
Next, Wyatt objects to Anderson's affidavit when it discusses Wyatt's visit to the Bastrop
County Sheriffs Office after Anderson discovered the trash cans had been purchased with Wyatt's
credit card. Upon Wyatt's arrival, Anderson confirmed he was an identical match to the individual
in the Wal-Mart video recording. Anderson then states:
Mr. Wyatt filled out the top portion of a Voluntary Statement, while reading allowed
[sic] his Miranda Warning. Mr. Wyatt signed the statement acknowledging his
understanding of his rights. When I advised him of my findings, and linking him to
the burglaries, Mr. Wyatt refused to fill out his statement. Mr. Wyatt was shown
video footage, where he stated that the person in the video "could" be him, and
denied having any knowledge of buying the trash cans.
Wyatt asserts he requested his attorney upon being given his Miranda warnings, but Anderson
continued to question him. Therefore, Wyatt contends any statement obtained by Anderson after
Wyatt's request for an attorney should be removed from the affidavit.
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As an initial matter, assuming Anderson did indeed violate the Miranda procedures, these
violations do not amount to violations of the Constitution itself and, as such, fail to raise a cause of
action under
§
1983, See Chavez v. Martinez, 538 U.S. 760, 772 (2003) (collecting cases). In
addition, the Court concludes excising any statement made by Wyatt under questioning does not alter
the conclusion there was plenty of support for a reasonable officer to find probable cause. The only
alleged statements Wyatt made which appear in the affidavit are the person in the video could be him
and a denial of having any knowledge of buying the trash cans. Neither one of these alleged
statements is necessary to a finding of probable cause.
Accordingly, Wyatt has failed to allege a valid claim for false arrest. In addition, the
summary judgment evidence shows Defendants Anderson and Davenport were not objectively
unreasonable in concluding there was probable cause for Wyatt's arrest.
Malicious Prosecution
2.
Construing Wyatt's claims liberally, he may also be asserting a claim of malicious
prosecution.1
Federal law, however, does not recognize an independent constitutional claim of
malicious prosecution. Cuadra
Castellano
v.
v.
Hous. Indep. Sch. Dist., 626 F.3d 808, 812-13 (5th Cir. 2010);
Fragozo, 352 F.3d 939, 945 (5th Cir. 2003) (en banc). The claimant must instead
allege "that officials violated specific constitutional rights in connection with a malicious
prosecution." Cuadra, 626 F.3d at 812 (internal quotation marks and citation omitted); Deville
v.
Marcantel, 567 F.3d 156, 169 (5th Cir. 2009). While a malicious prosecution claim alone is not
cognizable under
§
1983, "additional government acts that may attend the initiation of a criminal
1Although Wyatt does not include any mention in his Amended Complaint of a malicious prosecution claim,
Wyatt states in his Response to Defendants' Motion for Summary Judgment he has brought his complaint under § 1983
for false arrest, malicious prosecution and conspiracy concerning his arrest and indictment for burglary of a building.
-16-
charge could give rise to claims of constitutional deprivation." Castellano, 352 F.3d at 953. "[T]he
initiation of criminal charges without probable cause may set in force events that run afoul of explicit
constitutional protectionthe Fourth Amendment if the accused is seized and arrested, for example
." Id. To prevail, a
§
1983 plaintiff must identify specific constitutional rights which were
violated in connection with a malicious prosecution. Cuadra, 626 F.3d at 812. Wyatt appears to
assert his malicious prosecution claim follows his claim of false arrest.
Under Texas law, "[a] plaintiff in a malicious criminal prosecution claim must establish (1)
the commencement of a criminal prosecution against the plaintiff; (2) causation (initiation or
procurement) of the action by the defendant; (3) termination of the prosecution in the plaintiffs
favor; (4) the plaintiff's innocence; (5) the absence of probable cause for the proceedings; (6) malice
in filing the charge; and (7) damage to the plaintiff." Richey v. Brookshire Grocery Co., 952 S.W.2d
515, 517 (Tex. 1997).
In this case, Wyatt's claim is defeated because probable cause supported his arrest, there is
no competent summary judgment evidence showing malice was involved with regard to the filing
of the burglary charge, and Wyatt has not shown he was innocent of the burglary. Although the
burglary charge was dismissed, it was done so pursuant to a motion to dismiss filed by the prosecutor
indicating Wyatt had a pending first degree felony charge in Lee County, and Wyatt would be
prosecuted for this offense, which had a higher punishment range. Accordingly, Defendants
Anderson and Davenport are entitled to qualified immunity.2
2To the extent Wyatt's claim is analyzed as a state law claim, Anderson and Davenport are protected by official
immunity. Texas recognizes an "official immunity" defense to state law claims such as malicious prosecution. City of
Lancaster v. Chambers, 883 S.W.2d 650, 653 (Tex. 1994). State actors are entitled to official immunity from state law
liability for "(1) the performance of discretionary duties (2) that are within the scope of the employees' authority, (3)
provided that the employee acts in good faith." Teithorster v. Tennell, 92 S.W.3d 457, 460-61 (Tex. 2002); see also
DeWittv. Harris Cnty., 904 S.W.2d 650, 652 (Tex. 1995). "Texas law of official immunity is substantially the same as
-17-
In his Objections, Wyatt argues he has been deprived complete discovery in this case, and
therefore has been unable to pursue his allegations of malicious prosecution. Wyatt points out he
filed a Motion to Stay the Motion for Summary Judgment [#47] based on the lack of discovery
compliance, which the Court denied. Wyatt has since filed two Objections [## 56, 58] to this denial,
which the Court addresses below in Part III, overruling both Objections.
In short, Wyatt's
complaints concerning discovery are overruled. The Court has broad discretion over discovery
matters, and while Wyatt was diligent in pursuit of his discovery, he never filed a motion to compel.
More importantly, he fails to show additional discovery is necessary because his requests would not
create a genuine issue of material fact as to his false arrest or malicious prosecution claims.
D.
Municipal Liability
Wyatt's claims against the Defendants in their official capacities are claims made against
Bastrop County. A county, however, is not liable under § 1983 on the theory ofrespondeat superior;
a municipality is only liable for acts directly attributable to it "through some official action or
imprimatur."
Valle
v.
City ofHous.,
613 F.3d 536, 541 (5th Cir. 2010) (citing Piotrowski v.
City of
Hous., 237 F.3d 567, 578 (5th Cir. 2001)). To establish municipal liability, the plaintiff must show
the deprivation of a federally protected right caused by action taken "pursuant to an official
municipal policy."
Valle,
613 F.3d at 541-42 (internal citations omitted). Nowhere in Wyatt's
amended complaint are allegations a city policy, practice, custom, or procedure of Bastrop County
or of the Sheriff's Department was the moving force behind the alleged violations of his
federal qualified immunity." Wren v. Towe, 130 F.3d 1154, 1160 (5th Cir. 1997); see also Hart v. O'Brien, 127 F.3d
424, 452 (5th Cir. 1997) (holding that where officers "reasonably believed they had probable cause to proceed agaisnt
[the plaintiff]," as determined in the federal qualified immunity analysis, the plaintiff"caimot assert a claim for malicious
prosecution" under Texas law).
constitutional rights. Moreover, as shown above, Wyatt has failed to establish his constitutional
rights were violated.
III.
Objections to Denial of Motion to Stay
On September 16, 2013, prior to the entry of the R&R, Wyatt filed a Motion to Stay
Defendant's Motion for Summary Judgment [#47] pursuant to Federal Rule of Civil Procedure
56(d). Wyatt complained the Defendants had not yet provided all of the requested discovery.
Specifically, Wyatt claimed the Defendants had not given him: (1) a transcript of the interview
between Anderson and Wyatt; (2) the supposed complaints filed by Vernon in connection with the
property he lost in the burglary; (3) photographs of the crime scene; (4) photographs of the evidence
collected by Davenport; and (5) the "inner-office memos contained in the District Attorney's file."
See
Pl.'s
Mot. Stay Defs.' Mot Summ. J. [#47]. This motion was denied in a text order on
September 25, 2013.
Wyatt filed an Objection to the text order denying the motion to stay. In this Objection,
Wyatt acknowledges his response to Defendants' motion for summary judgment is inadequate and
lacking in proof Wyatt asserts this deficiency is due to Defendants' continued refusal to comply
with discovery requests. Specifically, Wyatt references requests for letters and memos to Wyatt's
attorney from the District Attorney's Office "concerning evidence not found in the District
Attorney's filebut contained inpolicereports." Pl.'s Objection [#56]. Wyatt also refers to Vernon's
property loss forms, forensic evidence in the form of fingerprint results, photographs of the crime
scene, photographs of the evidence, answers to Wyatt's remaining interrogatories, and other items.
See id.
Wyatt filed a second Objection to the order denying his motion for stay in which he reiterates
his claim Defendants have refused to comply with discovery requests making it impossible for him
-19-
to prove his claims. See PL's Objection [#58]. Wyatt provides a list of the items he has requested
and still seeks, which essentially covers the items described above.
Generally, Rule 56(d) motions are favored and should be liberally granted. Stearns Airport
Equip. Co.
v.
FMC Corp., 170 F.3d 518, 534 (5th Cir. 1999). A district court, however, has broad
discretion over discovery matters and may deny such a continuance if the party seeking it has failed
to pursue discovery diligently enough to warrant relief or has failed to justify why the relief should
be granted. Beattie
v.
Madison Cnly. Sch. Dist., 254 F.3d 595, 606 (5th Cir. 2001). To support a
motion for additional discovery the movant must show: (1) why additional discovery is necessary
and (2) "how the additional discovery will likely create a genuine issue of material fact." Stearns
Airport Equip., 170 F.3d at 534-35. The claims must be supported with some particularity; a
plaintiff "may not simply rely on vague assertions that additional discovery will produce needed, but
unspecified facts." Beattie, 254 F.3d at 606 (quoting Krim v. Banc Tex. Grp., Inc., 989 F.2d 1435,
1442 (5th Cir. 1993)).
First, the record indicates Wyatt has pursued discovery diligently. As early as May 3, 2013,
Wyatt filed a Motion to Subpoena Records of Anderson Law Firm [#15], which was appropriately
denied without prejudice because Wyatt: (a) failed to explain why records were relevant, and (b) why
he could not simply request a copy of his file from his attorney. See Order of May 14,2013 [#19].
Wyatt also filed a Motion for Discovery [#17] on May 8, 2013, in which he made broad requests for
discovery. The Court dismissed this motion and instructed Wyatt to direct his discovery requests
to the Defendants, not the Court.
Later, in September, Wyatt again filed a Motion for Subpoena of Records [#45], in which
he explained to the Court he never received his case file from his attorney despite sending the firm
-20-
multiple letters. Specifically, Wyatt asserted he wanted communications between his attorney and
the District Attorney indicating the District Attorney admitted Defendant Anderson's probable cause
affidavit was false and the evidence used was false. He was also seeking various other discovery
such as witness statements, photographs of the evidence, and so forth. Wyatt filed another Motion
for Subpoena of Records [#48], seeking documents in possession of various witnesses. Wyatt lists
those witnesses and the desired documents. Both of these Motions for Subpoena of Records were
granted by the Court.
See
Order of Sep. 27, 2013.
Since this time, Wyatt has filed his Objections to the order denying his motion to stay,
asserting his attorney, the Defendants, and the various witnesses have still not complied with his
discovery requests. Based on the foregoing, it appears Wyatt has pursued discovery diligently, but
he has been ineffective in obtaining it. The Court notes Wyatt never filed a motion to compel with
the Court. While he filed a "motion for discovery" early on in the case, this motion was
appropriately denied, and Wyatt was told to handle discovery directly with those from which he
sought information. If his efforts to obtain discovery continued to be thwarted, Wyatt should have
filed a motion to compel. Instead, he filed motions for subpoena of records, which were granted.
The proper mechanism, however, for asking Court to intervene when discovery is continually denied
is a motion to compel. Moreover, Wyatt, for reasons described below in Part IV, did not serve his
subpoenas in compliance with the Federal Rules of Civil Procedure. While the Court construes a
pro se litigant's pleadings liberally and understands Wyatt is attempting to conduct discovery from
prison, the Court cannot litigate Wyatt's case for him. Wyatt did not use the discovery rules and
procedures effectively in order to obtain his desired discovery, and it is due to his own failure to
properly litigate his own case.
-21-
Second and more importantly, Wyatt has failed to justify why the relief should be granted.
Specifically, Wyatt fails to show the Court why additional discovery is necessary and how the
additional discovery will likely create a genuine issue of material fact. Much of Wyatt's requested
discovery will not change the fact there was probable cause for his arrest. A transcript of the
interview between Anderson and Wyatt, the property loss forms filed by Vernon (which Wyatt
claims do not exist), photographs of the crime scene, photographs of the evidence, and so forth are
part of Wyatt's attempt to prove his innocence, but whether Wyatt is innocent or not does not alter
the conclusion probable cause existed for his arrest. Moreover, Wyatt's attempts at discovery mostly
amounts to a fishing expedition to prove there was a massive conspiracy to falsify evidence in order
to secure his arrest. Wyatt, though, provides no evidence whatsoever to substantiate such a theory.
For instance, there is no indication Anderson, Davenport, or any of the law enforcement officials
involved previously knew Wyatt or had any reason at all to falsely arrest Wyatt, much less
maliciously prosecute him.
The only discovery request which comes close to being relevant and sufficiently particular
is Wyatt's request for communications between his attorney and the District Attorney. In his
Objection to the denial of the motion to stay, Wyatt seeks letters and memos to Wyatt's attorney
from the District Attorney's Office "concerning evidence not found in the District Attorney's file
but contained in police reports." Pl.'s Objection
Records
[#45],
[#56].
In one of his Motions for Subpoena of
Wyatt asserted he wanted communications between his attorney and the District
Attorney indicating the District Attorney admitted Defendant Anderson's probable cause affidavit
was false and the evidence used was false. What exactly Wyatt thinks are contained is these
supposed communications is not altogether clear, but in his Objections to the R&R
-22-
[#59],
Wyatt
claims Defendant Anderson told the prosecutor the evidence in Wyatt's case was "screwy."
Objections to the R&R [#59], at 6. Furthermore, Wyatt claims the District Attorney told his attorney
part of the reason the District Attorney was dismissing the case was due to "shoddy police work."
Id.
Wyatt's own requests indicate these communications between his attorney and the District
Attorney,
if they exist, do no more than show Defendant Anderson was a bit sloppy in his
investigation. As described in Part II(C)(1), however, there was plenty of evidence to support a
finding of probable cause even if you remove the aspects of the affidavit Wyatt argues are false or
misleading. Therefore, this discovery request would not create a genuine issue of material fact
concerning the false arrest claim. Moreover, establishing Anderson's work was shoddy would not
create a genuine issue of material fact concerning the malicious prosecution claim. At most, it could
show Anderson was negligent, but Anderson is not required to be perfect.
See Martin,
973 F.2d at
453. Without a showing of malice, Anderson would still be entitled to qualified immunity.
In sum, the Court has broad discretion over discovery matters. While Wyatt was diligent in
pursuit of his discovery, he never filed a motion to compel. Furthermore, he fails to show additional
discovery is necessary because his requests would not create a genuine issue of material as to any
of his claims.
IV.
Motions to Quash
Most recently, Defendant Bastrop County has filed a Motion to Quash [#61] Wyatt's
subpoenas issued to: (1) Brigitte Buscha, evidence technician; (2) Greg Gilleland, Assistant District
Attorney; (3) Theresa Stoppelberg, custodian of records; (4) Martin Placke, Lee County District
Attorney; (5) Raymah Davis, District Judge; (6) James Rash, Wal-Mart manager; and (7) the
-23-
Anderson & Anderson Law Firm. Defendant Bastrop County argues because this case has already
proceeded to the dispositive motion stage, and the Magistrate Judge has already issued a report and
recommendation on Defendants' Motion Summary Judgment, the subpoenas should be quashed.
Bastrop County argues Wyatt is attempting to conduct discovery outside the scheduling order and
outside the discovery deadline. In addition, Bastrop County argues the subpoenas are defective on
their face.
Wyatt filed a Motion in Opposition to Defendant's Motion to Quash Subpoenas [#62], which
the Court construes as a Response. Wyatt reiterates his contention that Defendants have failed to
comply with the discovery rules. Wyatt further argues the Motion to Quash is not timely, pursuant
to Federal Rule
of Civil Procedure 45. Finally, Wyatt points out the parties served with subpoenas
are not represented by the Law Offices of Charles Frigerio, which represents Defendant Bastrop
County and filed the Motion to Quash the subpoenas. As Wyatt notes, no objections were filed by
the witnesses served.
The Court first notes the scheduling order in this case contains no discovery deadline, so
Bastrop County's contention that Wyatt is attempting to conduct discovery outside of such a deadline
is false. Moreover, the Court agrees with Wyatt's contention Defendant Bastrop County, represented
by the Law Offices of Charles S. Frigerio, is attempting to quash subpoenas on other non-parties in
this case. As far as the Court can tell, the Law Offices of Charles S. Frigerio does not represent any
of the parties served with subpoenas. Therefore, the Court DENIES Defendant Bastrop County's
Motion to Quash.
The Court notes, however, Wyatt's subpoenas are deficient and do not comply with the
federal rules. Federal Rule of Civil Procedure 45(b) provides: "Any person who is at least 18 years
-24-
old and not a party may serve a subpoena. Serving a subpoena requires delivering a copy to the
named person.
. .
." Examining the proofs of service provided by Wyatt, it is unclear what exactly
he has done. They indicate Wyatt "served" a copy of the subpoena to the parties by placing the
copies "in the U.S. mailbox located on the Eastham unit in Lovelady, Texas."
[#60].
See Proof of Service
The only signature on the page is Wyatt's, and the "server's signature" is blank. Wyatt, as
a party in the case, cannot serve the subpoenas. Additionally, it is not clear where Wyatt actually
sent these various proofs of service or whether the intended recipient actually ever received the
subpoena. As such, Wyatt's subpoenas are facially deficient.
Conclusion
Accordingly,
IT IS ORDERED that Plaintiff Marc Wyatt's First Objection to the Denial
Motion to Stay
Motion to Stay
and Plaintiff Marc Wyatt's Second Objection to the Denial of the
[#56]
[#5 8]
of the
are OVERRULED;
IT IS FURTHER ORDERED that Plaintiff Marc Wyatt's Objections to the Report
and Recommendation
[#59]
are OVERRULED;
IT IS FURTHER ORDERED that the Report and Recommendation of Magistrate
Judge Mark Lane
[#54]
is ACCEPTED;
IT IS FURTHER ORDERED that Plaintiff Mark Wyatt's Motion for Partial
Summary Judgment
[#39]
is DENIED;
IT IS FURTHER ORDERED that Defendants Robert Anderson and James
Davenport's Amended Motion for Summary Judgment
-25-
[#42]
is
GRANTED;
IT IS FURTHER ORDERED that Defendants Robert Anderson and James
Davenport's Motion to Quash [#61] is DENIED;
IT IS FiNALLY ORDERED that Plaintiff Marc Wyatt's Amended Complaint [#33],
with respect to the claims brought against the Bastrop County Sheriffs Office, Matthew
Vernon, and Robert Madden Industries, is DISMISSED WITH PREJUDICE for failure to
state a claim upon which relief can be granted pursuant to 28 U.S.C.
§
1915(e).
SIGNED this the c20 day of February 2014.
SRKS
UNITED
191 1983 dism ordjtw.frm
26
STRICT JUDGE
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