Rojas v. Kirkpatrick et al
Filing
34
ORDER GRANTING Officer Defendants' and the City's 30 Motion to Dismiss for Failure to State a Claim; Plaintiffs claims against Defendants Ginnie Kirkpatrick, Clayton Kleen, J.P. Wilson, and Gary Boshears in their individual and official capacities are DISMISSED WITHOUT PREJUDICE. ORDER DENYING Plaintiff's 22 Objections and Motion to Reinstate Cheryl Pounds as aDefendant. Plaintiffs Second Amended Complaint as to Judge Pounds isDISMISSED WITH PREJUDICE. Signed by Judge Sam Sparks. (klw)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TEXAS
AUSTIN DIVISION
VICTOR ROJAS,
Plaintiff
f)
10150C128 PM 1:58
§
V.
F1
§
§
§
GINNIE KIRKPATRICK, in her official
and individual capacities; CLAYTON
KLEEN, in his official and individual
capacities; J.P. WILSON, in his official and
individual capacities; GARY BOSHEARS,
in his offical and individual capacities; and
CHERYL POUNDS, in her official and
individual capacities,
Defendants.
A-i 5-CV-00354-SS
§
§
§
§
§
§
§
§
§
§
[SI
1II 3
ON THIS DAY the Court considered the Second Amended Complaint [Dkt. # 23] filed
by Plaintiff, Victor Rojas, in the above styled cause; Defendants Ginnie Kirkpatrick, Clayton
Kleen, J.P. Wilson, Gary Boshears (collectively, the "Officer Defendants") and the City of
Granite Shoals ("the City")'s Answer to Plaintiff's Second Amended Complaint and Assertion
of Immunity [Dkt. #29]; the Officer Defendants' and City's Motion and Brief to Dismiss For
Failure to State A Claim [Dkt. #30], and Plaintiff's Response thereto [Dkt. #31]; Plaintiffs
Objection and Motion to Reinstate Cheryl Pounds as a Defendant [Dkt. #22], Judge Pounds'
Response thereto [Dkt. #26], and Plaintiffs Reply in Support thereof [Dkt. #32].
Having
considered these documents, the applicable law, and the case file as a whole, the Court DENIES
Plaintiffs Motion to Reinstate Judge Pounds as a Defendant [Dkt. #23], and GRANTS the
Officer Defendants' and City's Motion to Dismiss [Dkt #30].
1
I.
BACKGROUND
Plaintiff complains his home was illegally searched
twiceonce
pursuant to a
warrantless "general rummaging" search conducted by Officer Ginnie Kirkpatrick, assisted by
Officer Clayton Kleen, and once pursuant to an invalid warrant issued by Municipal Court Judge
Cheryl Pounds. With regard to the second, warrant-based search, Plaintiff complains Judge
Pounds issued the search warrant without the legal authority to do so, because she is not a
licensed attorney. 2d Am. Compl. [Dkt. #23] at 7-8. He further alleges the search warrant is not
supported by probable cause because Kirkpatrick, the investigating officer, falsely stated that she
could see roosters and paraphernalia commonly used in the offense of cockfighting in plain view
when in fact these items were discovered during a warrantless "general rummaging" search of
the property. 2d Am. Compi. [Dkt #23] at 8-10.
Plaintiff asserts the officers seeking the warrant knew they did not have probable cause
based on their prior warrantless search, and the officers knew the non-attorney municipal court
judge did not have the legal authority to issue the warrant. Id.
Plaintiff alleges Judge Pounds
was also aware of these defects at the time she issued the warrant. Id. Plaintiff contends the
officers executing the warrant were or should have been aware of these defects, and their entry
onto his property and seizure of the items listed in the warrant thus amounts to state law trespass
and theft of Plaintiff's personal property. Id.
Plaintiff brings claims under 42 U.S.C.
§
1983 against Ginnie Kirkpatrick, the Granite
Shoals police officer who sought the search warrant and conducted the search of his property
pursuant to the warrant; Clayton Keen, the officer who assisted Kirkpatrick in her initial entry on
to the property; Gary Boshears, the officer who assisted Kirkpatrick in executing the search
warrant; J.P. Wilson, the Police Chief of Granite Shoals, who was responsible for "overseeing
2
Kirkpatrick," and Judge Cheryl Pounds, the Marble Falls municipal court judge who issued the
challenged search warrant. 2d Am. Compl. [Dkt #23] at 4-5. Plaintiff additionally asserts state
law claims against the Officer Defendants for trespass, conversion, intentional infliction of
emotional distress, and negligence per Se. Id.
A.
Factual Allegations
Plaintiff's Second Amended Complaint attaches several exhibits, which are incorporated
by reference in his otherwise-sparse description of events. "Significantly, because of [Plaintiffs]
pro se status, [Fifth Circuit] precedent compels [the Court] to examine all of his complaint,
including the attachments."
Clark
v.
Huntleigh Corp., 119
F. App'x 666, 667 (5th Cir. 2005).
The Court does not construe the attachments as evidence, but as "amendments to the
complaint" that "embellish[] the original complaint's averments." Id. (quoting Howard
King,
v.
707 F.2d 215, 220 (5th Cir. 1983)).1 Reading these attachments together with the more
conclusory account of Plaintiffs grievances contained in his Second Amended Complaint, the
Court understands Plaintiff to allege the following:
On April 2, 2015, Officer Kirkpatrick, accompanied by Officer Kleen, came to the Rojas
property seeking to make contact with non-party, Raul Rojas, on an unrelated matter. Id. at Ex.
2. There are two single-wide mobile homes facing each other, perpendicular to the road, on the
property. Id. Officer Kirkpatrick knocked on the front door of the mobile home located on the
west side of the property and no one answered the door. Id. Officer Kirkpatrick's affidavit
1
Specifically, Plaintiff has included as Exhibits 1 through 5: (1) the challenged search warrant, (2) the affidavit
of Ginnie Kirkpatrick supporting the application for the search warrant, (3) the Return and Inventory listing items
photographed and/or seized in the search pursuant to the warrant, (3) a photograph of ribbons won by Victor Rojas'
birds at a Texas Gamefowl Breeders Poultry Show on April 5, 2014, (4) two photographs of Stephen Hinds, the
Vice President of the Texas Gamefowl Breeders' Association, standing with roosters bred by Victor Rojas, and (5)
an affidavit by Hinds attesting to Rojas' good history as a breeder of gamefowl, describing the Rojas property, and
opining that the gamefowl operations are not visible from the front door of either of the Rojas trailers. 2d. Am.
Compl. [Dkt. #23} at Ex.
1-5.
3
states that she could "see and hear roosters coming from the south side of the property." Id.
Rojas, however, asserts "[f]rom the front door of either of the mobile homes on the property you
can not see [Plaintiff's] birds, and you have to actually go to the back of the property before you
can 'see' the birds." Id. at Ex. 5. Rojas contends the act of walking past the mobile homes to the
back of the property constituted a warrantless search, but he does not appear to contest
Kirkpatrick's affidavit to the extent Kirkpatrick states that, once past the mobile homes, she
could see multiple cages containing roosters, some containing roosters housed with hens, several
roosters "running at large on the property," and a table on which a hand saw, a transport cage,
and several empty medicine boxes and wound dressings were visible. Id. at Ex. 2.
Kirkpatrick's affidavit states she could see that "all of the roosters had the spur of their
foot cut or shaved off," a statement Rojas does not dispute. Id. Kirkpatrick avers shaving the
spur is common practice in cockfighting in order to allow a metal spur to be attached to the
rooster's leg.
Id.
Kirkpatrick's affidavit further states that, after leaving the property, she
researched the medications listed on the empty medicine boxes and determined they were
commonly used to stimulate performance and fertility in roosters used for cockfighting. Id.
Based on these observations, Kirkpatrick sought a search warrant to look inside the mobile
homes and sheds on the property and to seize the materials and photograph the birds found on
the property.
Id.
Kirkpatrick's probable cause affidavit states she believes, based on her
research into the offense of cockfighting, the items she saw at the Rojas property were used in
the commission of this offense. Id.
In reliance on Kirkpatrick's affidavit, Marble Falls Municipal Court Judge Cheryl Hinds
issued a warrant to search "the entire premises and curtilage, if the location is a residence,
including garages, sheds, outbuildings, and vehicles found to be under the control of the persons
ri
named below where the items to be seized might reasonably be kept or hidden." Id. at Ex.
1.
The warrant listed specific items to be seized: "Medications to treat wounded animals, vitamins
or stimulants used for roosters, feed used to feed roosters, metal spurs used on roosters [sic] feet
for fighting, transporting cages for relocation, spur clippings, handsaws/knives, or cutting
mechanisms used for spur cuttings, receipts, records, flyers, betting ledgers, schedules from
previous fights, and photographing all roosters." Id.
Officer Kirkpatrick returned to the property on April 8, 2014 with Officer Boshears to
execute the warrant.
2d Am. Compl. at 10. Kirkpatrick and Boshears searched the sheds and
the inside of the mobile home where Plaintiff lives. Id. The officers did not search the second
mobile home on the property. Id. The officers seized vitamins, antibiotics, two metal spurs, and
various other items, and photographed Plaintiff's birds. Id. at 10 and Ex. 3.
B.
Procedural 1-listory
None of the parties allege any criminal charges have been filed against Rojas as a result
of the April 2, 2015 search or the April 8, 2015 search and seizure. On April 27, 2015, Rojas
filed suit in state court alleging the conduct of Officer Kirkpatrick, Officer Kleen, Judge Pounds,
and Police Chief Wilson violated his constitutional rights, and the searches amounted to trespass
and theft under Texas law. Not. Removal [Dkt. #1], Ex. 1, Orig. Pet. Because Plaintiff seeks
relief pursuant to Section 1983 for alleged violations of federal constitutional law, Defendants
timely removed the case based on federal question jurisdiction.
Not. Removal at 2.
After
removal, Rojas amended his complaint to sue the named defendants in both their official and
individual capacities and to add additional city officials as Defendants.
1st
Am. Compl. [Dkt. #7]
at 4. Following motions to dismiss, this Court dismissed all of Plaintiff's claims except those
against the individual Officer Defendants, and ordered Plaintiff to replead his claims against the
5
individual Officer Defendants with specificity in light of their assertions of qualified and official
immunity. Order of July 16, 2015 [Dkt. #21].
Plaintiff has now submitted a Second Amended Complaint, adding Officer Boshears as a
Defendant and seeking to reinstate Judge Pounds as a Defendant. 2d Am. Compi. [Dkt. #23].
Plaintiff also submitted his Objection and Motion to Reinstate Cheryl Pounds as a Defendant
[Dkt. #22]. The Officer Defendants and the City, collectively, have submitted a second motion
to dismiss for failure to state a claim, contending that Plaintiff again failed to plead facts
sufficient to overcome their assertions of immunity. Mot. Dism. [Dkt. #30].
II.
STANDARD OF REVIEW
When evaluating a motion to dismiss for failure to state a claim under Rule 1 2(b)(6), the
complaint must be liberally construed in favor of the plaintiff and all facts pleaded therein must
be taken as true. Leatherman
v.
Tarrant Cnty. Narcotics Intelligence & Coordination Unit, 507
U.S. 163, 164, 113 5. Ct. 1160, 1161(1993); Baker
Although Federal Rule of Civil Procedure
8
v.
Putnal, 75 F.3d 190, 196 (5th Cir. 1996).
mandates only that a pleading contain a "short and
plain statement of the claim showing that the pleader is entitled to relief," this standard demands
more than unadorned accusations, "labels and conclusions," "a formulaic recitation of the
elements of a cause of action," or "naked assertion[s]" devoid of "further factual enhancement."
Bell Ad.
v.
Twombly, 550 U.S. 544, 555-57 (2007). Rather, a complaint must contain sufficient
factual matter, accepted as true, to "state a claim to relief that is plausible on its face." Id., 550
U.S.at 570.
Further, although qualified immunity is an affirmative defense, "plaintiff has the burden
to negate the assertion
of.
214, 217 (5th Cir. 2009).
.
.
immunity once properly raised." Collier
v.
Montgomery, 569 F.3d
When the defense of qualified immunity is raised in a motion to
dismiss, the complaint is subject to a heightened pleading requirement, which requires "claims of
specific conduct and actions giving rise to a constitutional violation." Cunningham
v.
City
of
Baich Springs, No. 3:14-CV-59-L, 2015 U.S. Dist. LEXIS 80145 (N.D. Tex. June 19, 2015)
(citing Schultea
v.
Wood, 47 F.3d 1427, 1432, 1434 (5th Cir. 1995) (en banc)).
Ordinarily, a court reviewing a motion to dismiss under Rule 12(b)(6) should not
consider matters outside the pleadings.
FED.
R. Civ. P. 12(d).
If extrinsic evidence is
considered, the motion should be converted (with adequate notice to the parties) into a motion
for summary judgment. Id. In this case, the Court finds Defendants' motion to dismiss should
be decided as a 1 2(b)(6) motion, notwithstanding the fact that Plaintiff has attached numerous
exhibits to his Response. See Resp. [Dkt. 31], Ex. 1-20. The majority of the Response exhibits
are copies of legal authorities, which are not evidence and which are properly within the Court's
consideration of the law relevant to the case. Resp. [Dkt. #3 1], Ex. 1-11, 14-15, 19. Some of
the Response exhibits mirror those attached to the Second Amended Complaint, and can
therefore be considered without going outside the pleadings. Id. at Ex. 12, 13.
To the extent
Plaintiff's response attaches news report and commentary concerning events unrelated to the
search of Plaintiff's residence, the court in its discretion declines to consider these extrinsic
materials. Id. at Ex. 16, 17, 20, and portions of Ex. 5, 6.
Finally, Plaintiff has included a
Response exhibit containing his own unsworn statement of events, which the Court will
construe, in light of his pro se status, as additional argument. Ex. 19; see also Clark, 119 F.
App'x at 667; Howard, 707 F.2d at 220. Considering these materials and the Second Amended
Complaint together in the light most favorable to the Plaintiff, the Court finds Rojas has not
asserted any claims that survive Defendants' various immunity defenses for the reasons set out in
detail below.
7
ANALYSIS
III.
A.
Judge Pounds Acted Within the Scope of Her Authority
This Court has already dismissed Plaintiff's claims against Judge Pounds because she is
entitled to absolute judicial immunity for her issuance of the search warrant. Order of July 16,
2015 [Dkt #21]. Plaintiff, however, seeks to reinstate her as a
defendant,2
asserting the Texas
Code of Criminal Procedure requires that a search warrant be issued by a magistrate who is also
a licensed attorney. TEX. CODE CRIM.
P.
Art. 18.01(c)). Judge Pounds was not an attorney at the
time she issued the search warrant and therefore, Plaintiff alleges, she acted without jurisdiction
and should not enjoy absolute immunity. Mot. Reinstate [Dkt. #22] at 3.
Plaintiff is partially correct, in that "[o]nly judges of municipal courts of record licensed
as attorneys, statutory county or district judges, or judges from the Court
of Criminal Appeals or
Supreme Court may issue evidentiary warrants under [Texas Code of Criminal Procedure] article
18.02(10)." Scott
v.
State, 868 S.W.2d 430, 432-33 (Tex.
App.Waco
1994, pet.
ref d).
It is
equally well settled, however, that "if the item sought to be seized is listed in article 18.02
[subsections (1) through (9)] then any magistrate may issue the warrant." Id. at 433.
Judge
Pounds, as a municipal court judge, is indeed a magistrate, regardless of whether she is also a
licensed attorney.
TEX.
CODE CRIM. P. Art. 2.09. Therefore, Judge Pounds is authorized to issue
warrants pursuant to Article 18.02, subsections (1) through (9). Scott, 868 S.W.2d at 432-33.
The classification of a warrant is an issue of law for the Court to decide. State
8
S.W.3d 695, 698 (Tex
App.Fort Worth
v.
Young,
1999, no pet). It is important to note that Subsection
Plaintiffs Motion to Reinstate Cheryl Pounds as a Defendant asserts only his Section 1983 claims based on
alleged federal Constitutional violations, and does not address the state law claims originally plead against Judge
Pounds. [Dkt. #22] at 4-5. Therefore, nothing in this Motion to Reinstate would cause the Court to revisit its Order
of July 16, 2015 [Dkt. #21] insofar as it dismisses the state law claims against Judge Pounds.
2
['I
(10)the only section that requires an attorney magistrate to issue the warrant"is a
'catch-all
section' that only applies when the other sections do not." Id. In this case, the warrant issued by
Judge Pounds lists thirteen specific categories of items that constitute "property specially
designed, made, or adapted for or commonly used in the commission of an offense," TEx. CODE
CRIM. P.
Art. 18.02(2), or alternatively, "implements or instruments used in the commission of a
crime" Id. at Art. 18.02(9). This is not a Subsection (10) warrant, and Judge Pounds was well
within her authority to issue it as a magistrate judge sitting for the City of Marble Falls
Municipal Court.
Id. at Art. 2.09.
Therefore, Judge Pounds is entitled to absolute judicial
immunity for her actions in this matter, and Plaintiff's motion to reinstate her as a defendant
[Dkt. #22] is DENIED. All claims asserted in Plaintiff's Second Amended Complaint against
Judge Pounds in her individual and official capacities are DISMISSED with PREJUDICE.
B.
Plaintiff Fails to Allege Facts Supporting Any Viable State Law Claims
Plaintiff's Second Amended Complaint alleges state and federal claims against
Defendants Kirkpatrick, Kleen, Wilson, and Boshears in their "official and individual
capacities."
2d Am. Compl. [Dkt. #23].
By suing the Officer Defendants individually and
officially, Plaintiff has filed suit against both the individual employees and the governmental unit
on whose behalf they are acting in their official capacities. Khansari
v.
City of Houston, 14 F.
Supp. 3d 842, 852-53 (S.D. Tex. 2014). His state law claims are therefore subject to the election
of remedies provision of the Texas Tort Claims Act.
101.106(E). This section states "if a suit is filed.
. .
TEX. Civ. PRAC.
&
REM. CODE
§
against both a governmental unit and any of
its employees, the employees shall immediately be dismissed on the filing of a motion by the
This Court will not re-engage Plaintiff's arguments concerning Judge Pounds' alleged intentional or negligent
malfeasance in issuing the warrant. Once judicial immunity attaches, it is "not overcome by allegations of bad faith
or malice and 'applies even when the judge is accused of acting maliciously and corruptly." Ballard v. Wall, 413
F.3d 510, 515 (5th Cir. 2005) (quoting Mireles v. Waco, 502 U.S. 9, 11(1991) (emphasis in Ballard).
governmental unit." Id. The City of Granite Shoals has invoked this statutory provision. Ans.
to 2d Am. Compi. {Dkt. #29] at 5.
defendants are therefore barred.
TEX.
Plaintiffs state law tort claims against the individual
Civ.
PRAC.
& REM. CODE §
101.106(E);
Bustos
v.
Martini
Club, 599 F.3d 458, 463 (5th Cir. 2010).
Plaintiffs state law claims against the Defendants in their official capacities are viable
only if they are claims for which sovereign immunity is waived under the Texas Tort Claims
Act. City
of El Paso
v.
Heinrich, 284 S.W. 3d 366, 380 (Tex. 2009) ("governmental immunity
protects government officers sued in their official capacities to the extent it protects their
employers"). The Texas
Tort
Claims Act governs "all tort theories that may be alleged against a
governmental entity whether or not it waives that immunity." Gil Ramirez Group, L.L. C.
Houston Indep. Sch. Dist., 786 F.3d 400, 415 (5th Cir. 2015); Franka
v.
v.
Velasquez, 332 S.W.3d
367, 378 (Tex. 2011) (holding that tort suits against the government are brought "under the act"
regardless of whether the TTCA waives the government's immunity).
Reading Plaintiffs Second Amended Complaint liberally, he asserts state law claims for
trespass, intentional infliction of emotional distress, and conversion of personal property. See
Resp. [Dkt. #31] at 4-5. These are intentional torts, for which the Texas Tort Claims Act does
not waive governmental immunity.
Sch. Dist.
v.
TEX.
Civ.
PRAC.
Watley, 216 S.W.3d 374, 387 (Tex.
&
REM. CODE § 101.057;
Midland Indep.
App.Eastland, 2006, no pet.). Therefore,
The individual officer defendants have asserted they are entitled to official immunity against state law tort
claims. Mot. Dism. [Dkt. #30] at 6; see also City of Lancaster v. Chambers, 883 S.W.2d 650, 653 (Tex. 1994)
(defining official immunity). Because Plaintiff cannot maintain state law tort claims against the individual officer
defendants in the face of the City of Granite Shoals' invocation of the Texas Tort Claims Statute's election of
remedies provision, the Court does not engage in a detailed discussion of the official immunity claims. The Court
does note, however, that the official immunity analysis closely tracks the qualified immunity analysis for individual
officer liability under federal law. Teithorster v. Tennell, 92 S.W.3d 457, 460 (Tex. 2002) ("official immunity's
good faith element requires the defendant to show that a reasonably prudent officer, under the same or similar
circumstances, could have believed the disputed conduct was justified based on information the officer possessed
when the conduct occurred"). Therefore, Plaintiff's state law claims against the officer defendants are not only
barred by the City's election of remedies pursuant to TEX. CIV. PRAc. & REM. CODE § 10 1.106(E), but the individual
defendants are entitled to official immunity on these state law claims to the same extent they are entitled to qualified
immunity on Plaintiff's Section 1983 claims. Telthorster, 92 S.W.3d at 460.
10
these claims cannot be maintained against the officer defendants in their official capacities.
Watley, 216 S.W.3d at 387.
To the extent Plaintiff seeks to assert claims for negligence against the Defendants in
their official capacities, the Texas Tort Claims Act requires him to establish a use of property
caused his damages.
TEX.
Civ. PRAC.
& REM.
CODE
§
101.021; Bohannan
v.
Doe, 527 F. App'x
283, 301 (5th Cir. 2013). "Property does not cause an injury if it only furnishes a condition that
makes injury possible.
.
.
The use of the property must be a substantial factor in bringing about
the injury." Bohannan, 527 F. App'x at 301 (internal citations omitted).
Plaintiff has not
identified any negligent use or misuse of tangible property by the officers that proximately
caused his alleged damages. See id. Therefore, his negligence and negligence per se claims
against the officer defendants in their official capacities must fail. Id.
Plaintiff seeks not only money damages (which are barred by the state's immunity from
suit, as discussed above), but also requests various forms of injunctive or declaratory relief. To
the extent these claims for nonmonetary relief are grounded in state law, they are not barred by
sovereign immunity.
City of Elsa
v.
MA.L., 226 S.W.3d 390, 392 (Tex. 2007).
Plaintiff,
however, lacks standing to seek injunctive or declaratory relief because "[p]ast exposure to
illegal conduct does not in itself show a present case or controversy" sufficient to justify
injunctive or declaratory relief. Bauer
v.
Texas, 341 F.3d 352, 357-58 (5th Cir. 2003). Plaintiff
complains of events that took place in April of 2015, and has not alleged "any facts or
circumstances showing that there is a 'real and immediate threat that he will again suffer a
similar injury in the future." Humphreys
v.
City
of Ganado, 467
F.
App'x 252, 257 (5th Cir.
2012) (internal quotations omitted). As Plaintiff has not alleged facts that "demonstrate either
11
continuing harm or a real and immediate threat of repeated injury in the future," neither
declaratory nor injunctive relief is appropriate in this case.
C.
Id.5
Plaintiff's Section 1983 Claims Fail
Plaintiff asserts Section 1983 claims against the Officer Defendants in their individual
and official capacities based on various alleged violations of federal constitutional law.
Although Plaintiff invokes multiple constitutional provisions as the foundation for his complaint,
Plaintiff's claims are all grounded in his factual allegations concerning the warrantless search of
his property on April 2, 2015 and the subsequent application for and execution of an allegedly
defective search warrant based on this first warrantless search. "Where a particular Amendment
'provides an explicit textual source of constitutional protection' against a particular sort of
government behavior, 'that Amendment, not the more generalized notion of 'substantive due
process' must be the guide for analyzing these claims." Aibright
75 (U.S. 1994) (internal citations omitted). Therefore,
v.
Oliver, 510 U.S. 266, 274-
Plaintiff's constitutional claims must be
analyzed as claims for unreasonable search and seizure under the standards applicable to review
of Fourth Amendment violations. Aibright, 510 U.S. at 273; Cuadra
v.
Houston Indep. Sch.
Dist. 626 F.3d 808, 814 (5th Cir. 2010).
1.
Officer Kirkpatrick is Entitled to QualUled Immunity
All of Plaintiff's claims against Officer Kirkpatrick are rooted in the question of whether
Officer Kirkpatrick saw the items that supported her probable cause determination "in plain sight
and on open fields," Mot. Dism. [Dkt. #30] at 4, or whether these items were located in an area
This standing defect applies with equal force to Plaintiff's claims for injunctive and declaratory relief arising
out of Section 1983. Bauer,341 F.3dat357-58.
12
in which Plaintiff had a reasonable expectation of privacy.
301
United States
v.
Dunn, 480 U.S. 294,
(1987).
Taking the facts alleged by Plaintiff at face value, Officer Kirkpatrick and Officer Kleen
approached Rojas' home to talk to one his family members. 2d. Am. Compl. [Dkt. #23] at Ex. 2.
At least two cars were parked on the property, but no one answered the door. Id. Nothing about
this initial attempted "knock and talk" attempt was unconstitutional. Carroll v. Carman, 135 S.
Ct. 348, 350-52 (2014); see also United States
v.
Walters, 529 F. Supp. 2d 628, 64 1-42 (E.D.
Tex. 2007). "Officials generally have an implied license to enter property to visit and converse
with the owner just as a private citizen might." Hoffmann v. Marion County, 592 F. App'x. 256,
258-59 (5th Cir. 2014) (citing Florida v. Jardines, 133 S. Ct. 1409, 1415-17 (2013)).
According to Plaintiff, the area housing the roosters was not visible from the front door of
his trailer. 2d. Am. Compl. [Dkt. #23] at Ex. 5. There is, however, no rule in the Fifth Circuit
prohibiting officers from "circl[ing] around the back of the trailer" as part of their attempts to
conduct a knock and talk. Cleveland
v.
Liberty County Sherff's Dept., No. 14-40691, 2015 U.S.
App. LEXIS 17374, *4 (5th Cir. Sep. 30, 2015) (publication pending). In fact, as recently as
2014, the United States Supreme Court held that there is no clearly established Fourth
Amendment violation if police officers conducting a knock and talk attempt to make contact by
approaching the back or sides of a dwelling. Carroll v. Carman, 135 5. Ct. 348, 350-52 (2014).
In response, Rojas cites a Texas state trespassing statute and asserts "[t]he property at
914A Churchill road [sic] is fenced as to obviously keep people out." Resp. [Dkt. #31] at 4.
Plaintiff's reliance on state trespassing law is unavailing. Even where a gated fence surrounds
the property, if the officers "reasonably believe the gate provided the principal means of
access.. . through which they could approach the front door," the Fourth Amendment is not
13
violated by entering the fenced yard to attempt a knock and talk. US.
v.
Thomas, 120 F. 3d 564,
572 (5th Cir. 1997). Neither is the Fourth Amendment violated by an officer's observation of
items that are in plain view from the officer's vantage point during the course of the attempted
knock and talk. Cleveland, 2015 U.S. App. LEXIS 17374 at *10; Thomas, 120 F. 3d at 568; see
also United States
v.
Cooke, 674 F.3d 491, 493-494 (5th Cir. 2012) (finding items viewable in an
enclosed area adjacent to the house were not protected by the Fourth Amendment because the
area was one into which "any member of the public would have gone to knock at the defendant's
front door.").
In this case, the Rojas property may have been fenced, but there is no factual allegation
that would suggest the fence properly excluded the officers from entering to access the front door
of the mobile home for a knock and talk. Thomas, 120 F. 3d at 572. Furthermore, it is not
unreasonable for officers to "circle[] around the back of the trailer" in the course of a knock and
talk, particularly in circumstances like these, where a knock on the front door yields no answer
but the presence of multiple cars on the property indicates someone may be home. Cleveland,
2015 U.S. App. LEXIS 17374, at *4; see also Carroll, 135 S. Ct. at 350-52.; see also Hardesty v.
Hamburg Twp., 461 F.3d 646, 654 (6th Cir. 2006) (collecting cases).
The Court finds the items supporting Kirkpatrick's probable cause affidavit were in plain
sight from her vantage point in a place where she was lawfully allowed to be in the course of an
attempted knock and talk. Thomas, 120 F. 3d at 568. Additionally and in the alternative, the
Court notes items located on private property outside the curtilage of the home are generally
subject to warrantless inspection under the "open fields"
doctrineeven where the property
issue is neither "open" nor a "field" in the traditional sense. Oliver
v.
at
US., 466 U.S. 170, 180
n.22 (1984). The Supreme Court has explained, "[ut is not generally true that fences or 'No
14
Trespassing' signs effectively bar the public from viewing open fields in rural areas." Id. at 179.
Further, the Supreme Court has explicitly rejected the concept that a fence sufficient to ward off
trespassers is sufficient to limit the "open fields" exception to the Fourth Amendement. Id. at
182-83. Instead, the primary focus is whether the area in question "harbors those intimate
activities associated with domestic life and the privacies of the home." United States
v.
Dunn,
480 U.S. 294, 301 (1987). Thus, one of the seminal cases outlining the open fields doctrine
found that an area located on a rural property, enclosed by a "perimeter fence" and additional
"similarly constructed interior fences," but without any earmarks of intimate, private use, was
subject to the open fields exception. Id. at 303-04. Similarly, where a part of the property is
used for public activities and is accessible or viewable to the public, it comes within the open
fields exception notwithstanding the fact that it is within close proximity to the residence itself.
See, e.g., United States
v.
Salinas, 538 F. App'x 574, 574-75 (5th Cir. 2013) (a horse trailer
located approximately 15 feet from the home, in an area that "was not enclosed, was visible from
the street, and was used for parking vehicles and equine-related activities" was within the open
fields, not the curtilage, of the residential property). Where multiple residences share a common
area of the property, that common area is not within the curtilage of the homes. Mack
v.
City
of
Abilene, 461 F.3d 547, 553-555 (5th Cir. 2006).
In this case, Rojas has alleged the south side of the property is used for raising gamefowl
for exhibition. See 2d Am. Compi. [Dkt. #23] at Ex. 5; Resp. [Dkt. # 31] at Ex. 18. This
agricultural and commercial activity is not part of the intimate activities of daily life that are
generally protected by the concept of curtilage. Dunn, 480 U.S. at 301; see also Cooke, 674 F.3d
at 493-94; Salinas 538 F. App'x at 574-75. Rojas also acknowledges there are two separate
mobile homes on the property. 2d Am. Compi. [Dkt. #23] at Ex. 2; Resp. [Dkt. #31] at Ex. 18.
15
Given that Roj as bears the burden of rebutting Kirkpatrick's qualified immunity defense, Collier,
569 F.3d at 217, his bald assertion that the property is fenced to keep out trespassers is
insufficient to rebut the "plain view and open fields" justifications for Kirkpatrick's investigation
of the gamefowl in the course of her attempted knock and talk. Mot. Dism. [Dkt. #30] at 4.
Officer Kirkpatrick did not violate Rojas' Fourth Amendment
well-established Fourth Amendment
rightswhen
rightscertainly not any
she entered the fenced property to conduct a
knock and talk and walked around to the back of the mobile home. Carroll, 135 S. Ct. at 350-52.
The gamefowl were visible in plain view from this vantage point, which justifies Kirkpatrick's
observations and application for a search warrant. Thomas, 120 F. 3d at 568; see also Cooke,
674 F.3d at 493-94.
Furthermore, Rojas' own factual allegations establish the area housing the gamefowl is
not part of the "intimate activities of the home." Dunn, 480 U.S. 294 at 301. Rather, Rojas'
factual allegations establish the property at issue is a fenced rural property containing at least two
mobile home residences, and the specific area of the property at issue was used for an
agricultural commercial enterprisebreeding and selling gamefowl. 2d Am. Compl. [Dkt. #23]
at Ex. 2, Ex. 5; Resp. [Dkt. #31] at Ex. 18. In these circumstances, the open fields exception to
the Fourth Amendment applies, and Officer Kirkpatrick is entitled to qualified immunity for her
actions in searching the area. Dunn, 480 U.S. 294 at 301. Because Officer Kirkpatrick's initial
search was not tainted, neither was her application for a search warrant in reliance on the items
she saw in plain sight and in open fields. Daniel
v.
Compass, 212 F. App'x 262, 267-68 (5th Cir.
2006).
2.
The Remaining Officers Are Entitled to QualUled Immunity
The liability of the other officers is not dependent on the same factual distinctions as
If1
Kirkpatrick's, because each of the remaining officers participated in the
Kirkpatrick's direction.
searchesif at
allat
In general, "an officer may rely on information supplied by other
officers that indicates that an offense has occurred." United States
889-90 (5th Cir. 2010); citing United States
v.
v.
Luckey, 402 F. App'x 889,
Ibarra-Sanchez, 199 F.3d 753, 759 (5th Cir.
1999). Liability for preparing an allegedly false or deficient warrant application extends only
only to the officer who actually prepared the
applicationin this case, Kirkpatrick. Michalik
Hermann, 422 F.3d 252, 261 (5th Cir. 2005).
v.
Specifically, an officer (such as Kleen) who
allegedly participated in providing information relevant to the warrant, but who did not prepare
or present the warrant itself, is not "in a position to see the whole picture, to understand his
responsibility, and thus fully to assess probable cause questions." Id.
Instead, participating
officers are authorized to rely on the information and direction provided by the investigating
officer. Luckey, 402 F. App'x at 889-90; see also Hampton
v.
Oktibbeha County Sheriff Dep 't,
480 F.3d 358, 365 (5th Cir. 2007) (officers who were "involved in the procurement process but
were not the affiant or preparer of the affidavit" were entitled to qualified immunity). Therefore,
Plaintiff has not stated a claim on which relief can be granted against Kleen for his alleged
participation in procuring the challenged search warrant. Hampton, 480 F.3d at 365.
Similarly, officers executing a warrant are entitled to rely in good faith on a facially valid
warrant and have no independent duty to investigate the basis of the probable cause outlined in
the warrant United States
v.
Triplett, 684 F.3d 500, 504 (5th Cir. 2012); United States v. Kelley,
140 F.3d 596, 602 (5th Cir. 1998). Because the warrant lists specific items to be seized, Rojas
has failed to allege facts sufficient to support his alternative claim that the warrant was too
general to satisfy constitutional requirements. Streetman
v.
Jordan, 918 F.2d 555, 557 (5th Cir.
1990). On its face, the Amended Complaint (through its attachments) describes a search of the
17
premises on April 8, 2015 that was within the parameters specified by the warrant. See, e.g
Resp. [Dkt. # 31] at Ex. 18 (Statement of Victor Rojas). Because the warrant was facially valid
and Rojas has not alleged the search exceeded the scope of the warrant, he has not stated any
claim for which relief can be granted against Officer Boshears for his role in executing the
warrant. Triplett, 684 F.3d at 504.
3.
Plaintiff Has Not Alleged Facts to Support Supervisor Liability
Finally, Plaintiff asserts claims against Granite Shoals Police Chief, J. P. Wilson. 2d Am.
Compl. [Dkt. #23] at 5. Rojas does not allege any direct involvement by Wilson in the events
surrounding the search of his home, the application for the warrant, or the execution of the
warrant. Instead, Rojas alleges Wilson is liable for failure to train and supervise Kirkpatrick and
her fellow officers in the performance of their duties. Id.
Neither Wilson nor the City of Granite Shoals can be held liable on a respondeat superior
theory under Section 1983. Monell v. New York City Dep't Soc. Servs., 436 U.S. 658 (1978). In
order to hold Wilson liable under Section 1983, Plaintiff must state factual allegations sufficient
to show "(1) the police chief failed to supervise or train the officer; (2) a causal connection
existed between the failure to supervise or train and the violation of the plaintiffs rights; and (3)
the failure to supervise or train amounted to deliberate indifference to the plaintiffs
constitutional rights." Roberts
v.
City of Shreveport, 397 F.3d 287, 292 (5th Cir. 2005) (citations
omitted).
Rojas' Second Amended Complaint states that Wilson "is responsible for overseeing
Kirkpatrick who ha[d] been a commissioned police officer for less than a month" at the time of
these events. 2d Am. Compi. [Dkt. #231 at 5. In support of this claim, Rojas recites the truism
that "Wilson has an obligation to train his police officers for the recurring tasks that officers will
18
face during their career." Id. (citing City of Canton
v.
Harris, 489 U.S. 378 (1989)). These
statements do nothing to identify any actual deficiency in Kirkpatrick's training that is causally
linked to the alleged Fourth Amendment violations Plaintiff claims, much less any deficiency in
Kirkpatrick's training that is attributable to deliberate indifference on the part of Wilson.
Roberts, 397 F.3d at 292. Therefore, Rojas has failed to state a claim for supervisory liability
under Section 1983. Id.
IV.
6
Conclusion
IT IS ORDERED that Plaintiff's Objection and Motion to Reinstate Cheryl Pounds as a
Defendant [Dkt. #221 is DENIED. Plaintiffs Second Amended Complaint as to Judge Pounds is
DISMISSED WITH PREJUDICE.
IT IS FURTHER ORDERED that the Officer Defendants' and the City's Motion and
Brief to Dismiss For Failure to State A Claim [Dkt. #30] is GRANTED. Plaintiffs claims
against Defendants Ginnie Kirkpatrick, Clayton Kleen, J.P. Wilson, and Gary Boshears in their
individual and official capacities are DISMISSED WITHOUT PREJUDICE.
Signedthisthe
dayof
,2015.
S(A17
UNITED STATES DISTRICT JUDGE
6
To the extent Plaintiff seeks to sue the City directly, his claim fails for the same reason: Plaintiff's
complaint lacks any factual allegation identifying a City policy encouraging or recklessly disregarding the risk that
the misconduct alleged by Plaintiff would occur. Snyder v. Trepagnier, 142 F.3d 791, 798 (5th Cir. 1998) (citing
City of Canton, 489 U.S. at 390-9 1).
19
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