Nerio v. Evans et al

Filing 10

REPORT AND RECOMMENDATIONS re 4 Motion to Dismiss filed by Derek Evans, Amy King. Signed by Judge Andrew W. Austin. (td)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TEXAS
AUSTIN DIVISION
CARLOS HENRY NERIO

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V.
DEREK EVANS and AMY KING

CAUSE NO. A-17-CA-037-LY

REPORT AND RECOMMENDATION
OF THE UNITED STATES MAGISTRATE JUDGE
TO:

THE HONORABLE LEE YEAKEL
UNITED STATES DISTRICT JUDGE
Before the Court are Defendants Evans and King’s Motion to Dismiss Pursuant to Rule

12(b)(6) (Dkt. No. 4); Plaintiff’s Response (Dkt. No. 7); and Defendants’ Reply (Dkt. No. 8). The
District Court referred the above motion to the undersigned Magistrate Judge for a report and
recommendation pursuant to 28 U.S.C. §636(b) and Rule 1(c) of Appendix C of the Local Rules.
I. BACKGROUND1
Plaintiff Carlos Henry Nerio brings this 42 U.S.C. § 1983 case against Texas Department of
Public Safety Officers Derek Evans and Amy King, in their individual capacities, alleging false arrest
and false imprisonment2 in violation of his Fourth and Fourteenth Amendment rights. In 2015, DPS
was involved in an investigation of a methamphetamine distribution network headed by Frank Lee
Dones, Jr. As part of that investigation, King and Evans conducted surveillance of Dones, used a
confidential informant to make a controlled methamphetamine buy from Dones, and obtained court

1

Because the case is before the Court on motions to dismiss for failure to state a claim, the
facts set forth here, taken from Plaintiff’s Original Complaint (Dkt. No. 1), are presumed true.
2

The Court addresses the false arrest and false imprisonment claims together as “false arrest”
as both require the same probable cause analysis. See Haggerty v. Texas State Univ., 391 F.3d 653,
655 (5th Cir. 2004).

orders authorizing pen registers for two of Dones’ telephones. King learned that one of Dones’
frequent callers was a man named Carlos Nerio whose telephone number was xxx-xxxx-2438.
Defendant King conducted an ACCURINT search of that telephone number and learned that Nerio
was residing at an address on Ed Bluestein Blvd. King then allegedly entered the 2438 phone
number into a Facebook search engine, which associated that number with a “Carlos Nerio.”
In April 2016, King listened in on additional narcotics related conversation between Dones
and Nerio, who was still using the 2438 telephone number. Nerio texted Dones: “This is Carlos.
I’m on my way. Are you home?” King and Evans were part of a surveillance team that traveled to
Dones’ house and observed Nerio exit his vehicle, enter Dones’ residence and drive away a few
minutes later. From this surveillance, King obtained the license plate from the vehicle, which he
confirmed from a database search was registered to “Carlos Nerio.” Based on their investigation,
Evans drafted an affidavit for an arrest warrant. The affidavit named the suspect as “Carlos Henry
Nerio, Jr.,” and stated that he resided on a street called “Wandering Way”—not the Ed Bluestein
Blvd. address obtained from ACCURINT earlier in thier investiation. At 5:30 in the morning of
June 30, 2016, peace officers entered the home on Wandering Way and executed the arrest warrant
by taking Plaintiff into custody. Plaintiff and his wife objected that he had not committed any crime
and that they were arresting the wrong person. Nerio was nevertheless handcuffed, placed in the
back of a police car and transported to the Travis County Jail. He was charged with Criminal
Conspiracy to commit Felony Manufacturing/Delivery of a Controlled Substance, and his bond was
set at $20,000. The arrest was reported on the local evening news, which led to Nerio being fired.
Further, he was forced to hire counsel and post a bond. It was not until On August 30, 2016, that the
charges were dismissed, which were dropped due to “mistaken identity.”
2

Nerio alleges that agents Evans and King knew, or should have known, that Nerio was not
the person involved in the drug conspiracy they were investigating, when they swore to the
information in the warrant used to arrest him. He points out that he never possessed the 2438
telephone number tied to the actual suspect. Evans swore in the arrest affidavit that King put the
2438 telephone number into a Facebook search engine, and it showed that it belonged to a “Carlos
Nerio.” While Nerio asserts that he has never had a Facebook page, he alleges that placing the 2438
phone number into a Facebook search returns with no results. Nerio further notes that he has never
lived on Ed Bluestein Blvd., the address connected to the vehicle registration of the car the officers
observed at Dones’ residence. Nerio adds that he has resided at, and been the owner of, his
Wandering Way home since June 2011. Evans swore that Carlos Nerio’s vehicle registration was
obtained and checked during the surveillance and that it came back to the Plaintiff, while an accurate
check of that registration would have revealed that it was not registered to a Carlos Nerio residing
on Wandering Way, but rather one on Ed Bluestein Blvd. Nerio asserts that King or Evans merely
ran an ACCURINT database search on the name “Carlos Nerio” and selected the dominant name on
the database, which was Plaintiff, not the “Carlos Nerio” they had observed and investigated in the
course of investigating the drug conspiracy.
Nerio alleges the arrest violated his constitutional rights, and brings this 1983 suit to recover
the damages he incurred. Evans and King move to dismiss Nerio’s claims, asserting that there was
probable cause for his arrest, and that they are entitled to qualified immunity.
II. LEGAL STANDARD
Federal Rule of Civil Procedure 12(b)(6) allows a party to move to dismiss an action for
failure to state a claim upon which relief can be granted. FED. R. CIV. P.12(b)(6). In deciding a Rule
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12(b)(6) motion to dismiss for failure to state a claim, “[t]he court accepts all well-pleaded facts as
true, viewing them in the light most favorable to the [nonmovant].” In re Katrina Canal Breaches
Litig., 495 F.3d 191, 205 (5th Cir. 2007) (internal quotation marks omitted), cert. denied, 552 U.S.
1182 (2008). While a complaint attacked by a Rule 12(b)(6) motion does not need detailed factual
allegations in order to avoid dismissal, the plaintiff's factual allegations “must be enough to raise a
right to relief above the speculative level.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555
(2007). A plaintiff’s obligation “requires more than labels and conclusions, and a formulaic
recitation of the elements of a cause of action will not do.” Id. The Supreme Court has explained
that a complaint must contain sufficient factual matter “to state a claim to relief that is plausible on
its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Twombly, 550 U.S. at 570). “A claim
has facial plausibility when the [nonmovant] pleads factual content that allows the court to draw the
reasonable inference that the [movant] is liable for the misconduct alleged.” Id. “The plausibility
standard is not akin to a ‘probability requirement,’ but it asks for more than a sheer possibility that
a defendant has acted unlawfully.” Id. The court generally is not to look beyond the pleadings in
deciding a motion to dismiss. Spivey v. Robertson, 197 F.3d 772, 774 (5th Cir. 1999). “Pleadings”
for purposes of a Rule 12(b)(6) motion include the complaint, its attachments, and documents that
are referred to in the complaint and central to the plaintiff’s claims. Collins v. Morgan Stanley Dean
Witter, 224 F.3d 496, 498–99 (5th Cir. 2000).
III. ANALYSIS
A.

Probable Cause for Arrest
Nerio brings his claim under both the Fourth and Fourteenth Amendments. “Where a

particular Amendment provides an explicit textual source of constitutional protection against a
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particular sort of government behavior, that Amendment, not the more generalized notion of
substantive due process, must be the guide for analyzing these claims.” Albright v. Oliver, 510 U.S.
266, 273 (1994) (internal punctuation deleted). A citizen has a right under the Fourth Amendment
to be free from arrest unless the arrest is supported by either a properly issued arrest warrant or
probable cause. Flores v. City of Palacios, 381 F.3d 391, 402 (5th Cir. 2004). “The Framers
considered the matter of pretrial deprivations of liberty and drafted the Fourth Amendment to address
it.” Albright, 510 U.S. at 274. Because the Fourth Amendment covers unlawful arrest, Nerio cannot
also seek relief under the Fourteenth Amendment, and his Fourteenth Amendment claims should be
dismissed. Cuadra v. Houston Indep. Sch. Dist., 626 F.3d 808, 814 (5th Cir. 2010). Thus the Court
addresses this case under only the Fourth Amendment.
“Under the Fourth Amendment, an arrest is reasonable if supported by probable cause.”
Martinez-Aguero v. Gonzalez, 459 F.3d 618, 625 (5th Cir. 2006). Thus, in order to support a claim
for an unlawful arrest, Nerio must plead sufficient facts to support that he was arrested without
probable cause. See Burge v. Parish of St. Tammany, 187 F.3d 452, 482 (5th Cir. 1999). Undisputed
evidence that an arrest was carried out under a facially valid arrest warrant satisfies the requirements
of the Fourth Amendment and forecloses a § 1983 claim for false arrest. Baker v. McCollan, 443
U.S. 137, 139 (1979). The Fifth Circuit has explained that “where an arrest is made under authority
of a properly issued warrant, the arrest is simply not a false arrest; such an arrest is not
unconstitutional, and a complaint based on such an arrest is subject to dismissal for failure to state
a claim.” Smith v. Gonzales, 670 F.2d 522, 526 (5th Cir. 1982).
On the other hand, a “governmental official violates the Fourth Amendment when he
deliberately or recklessly provides false, material information for use in an affidavit in support of a
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search [or arrest] warrant.” Hart v. O'Brien, 127 F.3d 424, 449 (5th Cir. 1997). In the context of
§ 1983 claims asserting Fourth Amendment violations, a governmental official is:
liable for swearing to false information in an affidavit in support of [an arrest]
warrant, provided that: (1) the affiant knew the information was false or [acted with]
reckless disregard for the truth; and (2) the warrant would not establish probable
cause without the false information.
Hart, 127 F.3d at 442 (citing Franks v. Delaware, 438 U.S. 154, 171 (1978)). “To prove reckless
disregard for the truth [a plaintiff] must present evidence that [the defendant] ‘in fact entertained
serious doubts as to the truth’ of the relevant statement.” Id. at 449 (quoting St. Amant v. Thompson,
390 U.S. 727, 732 (1968)); Melton v. Phillips, 837 F.3d 502 (5th Cir. 2016), reh'g en banc granted,
No. 15-10604, 2017 WL 629267 (5th Cir. Feb. 15, 2017). “Whether a defendant in fact entertained
serious doubts as to the truth is necessarily a fact question.” Melton, 2016 WL 4895989 at *5.
Nerio asserts that the officers who obtained the arrest warrant acted with reckless disregard
for the truth when they moved forward with a warrant request for him, despite knowing before they
submitted the affidavit and application that they had conflicting identity information. He points out
that without the misinformation in the warrant, the warrant would not otherwise establish probable
cause he had committed any crime. It appears that Nerio has adequately pled a cause of action
pursuant to Melton, and this is sufficient to state a claim of a Fourth Amendment violation.
Defendants next contend that the independent intermediary doctrine precludes their liability.
Under the independent intermediary doctrine, an officer is not liable for a Fourth Amendment
violation if the facts supporting the warrant were presented to “an impartial intermediary” (such as
a judge or grand jury), because that intermediary’s independent determination of probable cause
based on what was presented to him “breaks the causal chain” between the officer and the plaintiff.

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Thomas v. Sams, 734 F.2d 185, 191 (5th Cir. 1984)); Buehler v. City of Austin, 824 F.3d 548, 554
(5th Cir. 2015). “However, this doctrine applies only when all of the facts are presented and the
intermediary’s decision is truly independent of the wrongfulness of the defendant’s conduct.”
Melton, 2016 WL 4895989 at *5. Under the “taint exception,” “[a]ny misdirection of the magistrate
or the grand jury by omission or commission perpetuates the taint of the original official behavior.”
Hand v. Gary, 838 F.2d 1420, 1428 (5th Cir. 1988); Buehler, 824 F.3d at 554–55.
Nerio pleads that the initiating officers misrepresented the facts presented to the intermediary,
intentionally or recklessly, by ignoring their own prior research and falsely identifying Nerio as a
suspected participant in the drug deal, thereby tainting the judge’s decision. In this case, the judge
was presented a warrant for the wrong Carlos Nerio, and the judge’s decision to authorize a warrant
could not have been independent of the agents’ conduct. Thus the “taint exception” applies.
Assuming Plaintiff’s factual assertions are true, the independent intermediary doctrine does not apply
to shield Defendants from liability in this case. Hand, 838 F.2d at 1428.
B.

Qualified Immunity
Qualified immunity protects government employees from civil liability in their individual

capacities insofar as their conduct does not violate clearly established statutory or constitutional
rights of which a reasonable person would have known. Wernicke v. Garcia, 591 F.3d 386, 392 (5th
Cir. 2009). Even if a defendant’s conduct actually violates a plaintiff's constitutional rights, the
defendant is entitled to qualified immunity if the conduct was objectively reasonable under the
circumstances presented in the case. Zarnow v. City of Wichita Falls, 500 F.3d 401, 408 (5th Cir.
2007). Thus, the doctrine of qualified immunity shields from civil liability “all but the plainly
incompetent or those who knowingly violate the law.” Malley v. Briggs, 475 U.S. 335, 341 (1986).
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“The burden is on the plaintiff to overcome a defendant’s defense of qualified immunity.”
McClendon v. City of Columbia, 305 F.3d 314, 323 (5th Cir.2002) (en banc). Here, the qualified
immunity argument is made as part of a motion to dismiss under Rule 12(b)(6), and thus the officers
do not submit any factual information to support the motion. As mentioned, the burden is on the
plaintiff to show the inapplicability of the qualified immunity defense. To discharge his burden,
Nerio’s Complaint must allege facts that show that King and Evans violated his constitutional rights
and that the violation was objectively unreasonable in the light of clearly established law. See Club
Retro, LLC v. Hilton, 568 F.3d 181, 194 (5th Cir.2009).

This means Nerio’s pleadings must

plausibly state a claim of an objectively unreasonable violation of clearly-established law. See
Behrens v. Pelletier, 516 U.S. 299, 306–08 (1996).
To determine if an officer is entitled to qualified immunity for an alleged constitutional
violation, reviewing courts engage in a two-prong inquiry. Pearson v. Callahan, 555 U.S. 223
(2009). “[T]he first step is to determine whether plaintiff alleged a violation of a clearly established
constitutional right and the second step requires determining whether . . . the official's conduct was
objectively reasonable under clearly established law existing at the time of the incident.” Goodman
v. Harris Cty., 571 F.3d 388, 395 (5th Cir. 2009). There is little question that Nerio has pled a
violation of his Fourth Amendment rights, as the “right to be free from arrest without probable cause
is a clearly established constitutional right.” Mangieri v. Clifton, 29 F.3d 1012, 1016 (5th Cir.1994).
The primary issue at this stage is thus whether the Complaint pleads enough facts to support
a plausible claim that Evans and King acted objectively unreasonably. An officer’s actions are
considered “to be objectively reasonable unless all reasonable officials in the defendant’s
circumstances would have then known that the . . . conduct violated the United States Constitution
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or the federal statute.” Thompson v. Upshur Cty., TX, 245 F.3d 447, 457 (5th Cir. 2001). When
applying for an arrest warrant, an officer will have “qualified immunity from suit unless, ‘on an
objective basis, it is obvious that no reasonably competent officer would have concluded that a
warrant should issue.’” Spencer v. Staton, 489 F.3d 658, 661 (5th Cir. 2007) as revised (July 26,
2007) (quoting Malley, 475 U.S. at 341). The Constitution does not require error-free investigation,
and a plaintiff has no cause of action for the negligent conduct of investigating officers. Patterson
v. Armatys, 808 F.Supp. 550, 552 (E.D.Tex.1992).
What Nerio alleges here rises above mere negligence, and, if true, would reach the level of
objective incompetence. Nerio alleges that through a telephone number and a vehicle registration,
Evans and King had already linked the “Carlos Nerio” involved in the drug transaction to a Carlos
Nerio who resided on Ed Bluestein Blvd. He further alleges that they ignored this information when
they swore in the warrant affidavit that Nerio resided on Wandering Way, causing him to be arrested.
The fact that the officers’ investigation had returned two different addresses for a single subject, and
yet they never took any steps to determine which was the correct address, takes this case beyond a
case of mere negligence, and into the realm of the incompetent. Nerio has adequately pled a case
that an objectively reasonably officer, armed with the facts Evans and King had, would not have
sworn out an arrest warrant against him.
At this early stage of the case, with no record yet developed, dismissal on qualified immunity
grounds is therefore inappropriate.3 The facts contained in the Complaint are sufficient to withstand
dismissal on qualified immunity grounds. Obviously, at the summary judgment stage, with a more
complete factual record, the Defendants can again raise their qualified immunity defense.
3

The record does not even include the officers’ affidavit supporting the warrant.
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IV. RECOMMENDATION
In light of the foregoing the undersigned RECOMMENDS that the district judge GRANT
IN PART AND DENY IN PART Defendants Evans and King’s Motion to Dismiss Pursuant to
Rule 12(b)(6) (Dkt. No. 4). The Court recommends that the district judge DISMISS Plaintiff’s
Fourteenth Amendment claim, but in all other respects, recommends that the Motion be DENIED.
V. WARNINGS
The parties may file objections to this Report and Recommendation. A party filing objections
must specifically identify those findings or recommendations to which objections are being made.
The District Court need not consider frivolous, conclusive, or general objections. See Battle v.
United States Parole Comm’n, 834 F.2d 419, 421 (5th Cir. 1987).
A party’s failure to file written objections to the proposed findings and recommendations
contained in this Report within fourteen (14) days after the party is served with a copy of the Report
shall bar that party from de novo review by the District Court of the proposed findings and
recommendations in the Report and, except upon grounds of plain error, shall bar the party from
appellate review of unobjected-to proposed factual findings and legal conclusions accepted by the
District Court. See 28 U.S.C. § 636(b)(1)(c); Thomas v. Arn, 474 U.S. 140, 150-53 (1985); Douglass
v. United Servs. Auto. Ass’n, 79 F.3d 1415, 1428-29 (5th Cir. 1996) (en banc).
SIGNED this 26th of June, 2017.

_____________________________________
ANDREW W. AUSTIN
UNITED STATES MAGISTRATE JUDGE

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