McVea v. Swan et al
Filing
85
ORDER GRANTING 62 Motion for Summary Judgment; GRANTING 63 Motion for Summary Judgment; GRANTING IN PART AND DENYING IN PART 74 Motion to Strike; DENYING 81 Motion for Sanctions; DENYING 81 Motion for Default Judgment. IT IS FURTHER ORDERED that Plaintiff Denise McVeas claims against Defendants SAPD Officer Barrajas and Unknown Officer 1 are DISMISSED for lack of prosecution. Signed by Judge Robert Pitman. (rg)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TEXAS
SAN ANTONIO DIVISION
DENISE MCVEA,
Plaintiff,
v.
SAPD OFFICER T. SWAN, SAPD OFFICER
SCOTT, SAPD OFFICER BARRAJAS,
UNKNOWN OFFICER 1, SAN ANTONIO
POLICE DEPARTMENT, CITY OF SAN
ANTONIO
Defendants.
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5:14-CV-073-RP
ORDER AND OPINION
Before the Court are Defendants Joseph Swan and Daniel Scott’s Motion for Summary
Judgment, filed January 5, 2015 (Dkt. #62); Defendant City of San Antonio’s Motion for
Summary Judgment, filed January 5, 2015 (Dkt. #63); Plaintiff Denise McVea’s Response to
Defendants’ Motions for Summary Judgment, filed February 23, 2015 (Dkt. 75); Defendants
Joseph Swan and Daniel Scott’s Reply to Plaintiff’s Response, filed March 2, 2015 (Dkt. #78);
and Defendant City of San Antonio’s Reply to Plaintiff’s Response, filed March 2, 2015 (Dkt.
#79). Additionally, the Court now considers Plaintiff’s Motion to Strike, filed February 22, 2015
(Dkt. #74) and Plaintiff’s Motion for Sanctions and Request for Default Judgment, filed April 23,
2015 (Dkt. #81). After thoroughly considering the motions, briefs, relevant case law, and entire
record in this case, the Court finds that Defendants’ motions for summary judgment should be
granted and that Plaintiff’s motion to strike and motion for sanctions should be denied.
BACKGROUND
Plaintiff Denis McVea alleges she is the founder and executive director of the Auris
Project, a nonprofit organization that “assist[s] poor and otherwise marginalized communities
gain access to key rights and development information.” (Resp., Ex. A (“McVea Aff.”) ¶ 3). On
1
January 21, 2013, Ms. McVea decided to have a sale—or as she describes it, a “flea-market”—
to get rid of surplus donations that the nonprofit had accumulated over the years. (City’s Mot.
Summ. J., Ex. G (“McVea Depo.”), at 63). Ms. McVea and a couple of volunteers put out
several hundred items for sale in a grassy lot located at 1614 Martin Luther King Drive, in San
Antonio, Texas—a location on the route of the Martin Lither King Day March that was coming
through later that morning. (McVea Aff. ¶ 4-5; Am. Compl., at 8-11). This property consists of
an empty grassy lot (where the sale was occurring) and a commercial structure with a garage
facing the lot. (McVea Depo., at 149-51). The empty lot sits directly behind a house located at
402 Meerscheidt Street and is so close back of the residential property that the lot appears to be
the house’s backyard. 1 (See id., at 133-35, 149-51). Ms. McVea claims that 1614 Martin Luther
King Drive was the Auris Project’s place of business. 2
On the morning of the sale, “a drunken vendor across the street began playing loud
music and making lewd gestures to the volunteers.” (McVea Aff. ¶ 5). After this person refused
to turn down his music, either Ms. McVea or one of the volunteers called the police. (Id.).
Shortly thereafter, San Antonio Police Department (“SAPD”) Officer Joseph Swan arrived at the
scene. (Id. at ¶ 6). Officer Swan asked to see a permit for Ms. McVea’s “garage sale”—
something Ms. McVea did not have. (Id.) Instead, Ms. McVea told Officer Swan that she did
not need a permit because (1) the sale was a “business event” not a garage sale, (2) this was
commercial property, not residential property, and (3) the Auris project was registered with the
state and thus was permitted to conduct its business without undue interference from police.
(Id.).
1
At one point during her deposition, Ms. McVea even refers to the grassy lot where the sale was
occurring as “the backyard of 402 Meerscheidt” rather than part of the property with the commercial
structure and garage. (McVea Depo., at 134).
2
Ms. McVea claims title to the property through “adverse possession.” (McVea Depo., at 65). She
admits, however, that she has not been on the property long enough to establish adverse possession.
(Id. at 68). And, although Ms. McVea claims that the case is currently pending, a Bexar County District
Court has already quieted the title of the property to a third party and ordered Ms. McVea to vacate the
premises. (City’s Mot. Summ. J., Ex. H).
2
After being unable to convince Officer Swan that the sale was actually a business
operation, Ms. McVea asked to speak to Officer Swan’s supervisor. (Officer’s Mot. Summ. J.,
Ex. A (“Swan Aff.”), at 1). Sergeant Daniel Scott arrived a short time later, and after being
briefed on the matter, asked Ms. McVea for some evidence that the sale was, indeed, a
business event. (McVea Aff. ¶ 6-7). After first explaining that she generally did not keep the
Auris Project’s documents on the property, Ms. McVea went into the commercial structure to
look for “something with the Auris Project’s name on it.” (McVea Aff. ¶ 7). Sergeant Scott
followed Ms. McVea into the structure, and waited while she searched through some papers. 3
The only evidence Ms. McVea was able to produce, however, was a check with the Auris
Project’s name on it. (McVea Aff. ¶ 7).
Shortly thereafter, Sergeant Scott told Ms. McVea that he was going to call the City’s
Code Compliance Office. (Officer’s Mot. Summ J., Ex. C (“Scott Aff.”), at 1). At the time—and
throughout this lawsuit—Ms. McVea expressed doubt that Sergeant Scott was actually calling
the Code Compliance Office because she claims that this office would have been closed for
Martin Luther King Day. 4 (McVea Aff. ¶ 8).
When Sergeant Scott returned, he told Ms. McVea that she would be getting a citation
for having a garage sale without a permit, and that she would be required to sign the citation.
(McVea Aff. ¶ 9). Ms. McVea claims that the officers told her that by signing she would be
3
There is some dispute as to whether it was Officer Swan or Sergeant Scott that followed Ms.
McVea into the structure. Officer Swan claims that he followed Ms. McVea into structure before Sergeant
Scott was ever called to the scene. (Compare McVean Aff. ¶ 7, with Swan Aff., at 2). Which officer
entered the structure, however, is irrelevant to the Court’s analysis of Ms. McVea’s claims. Thus, for
clarity, the Court will assume it was Sergeant Scott that entered the commercial structure.
4
Ms. McVea has filed a Motion for Sanctions and a Request for Default Judgment (Dkt. #81)
because, among other things, Defendants have not provided Ms. McVea a call log that shows who
Sergeant Scott called. As this Court previously stated, this issue has been “litigated and ruled upon”
several times. (Dkt. #73). Ms. McVea has made this unsuccessful argument so many times, in fact, that
United States Magistrate Judge Primomo said that “[f]urther requests for the same would result in
sanctions.” (Dkt. #60, at 9). Though Ms. McVea’s continued filings regarding this discovery dispute are
clearly sanctionable, the Court declines to impose such a penalty at this time. Finding no reason to
overturn the numerous previous rulings on this issue, however, the Court denies Ms. McVea’s Motion for
Sanction and Request for Default Judgment.
3
agreeing to end the sale and return the donations to storage. (Id.) So Ms. McVea told the
officers that she would sign the citation but that she intended to continue with her event and that
the police had no jurisdiction over business events that were not criminal in nature. (Id.). But
the officers told her that if she signed the citation without shutting down the event, they would be
forced to place her under arrest.
(Id.).
Ms. McVea responded that the officers’ demand
“amounted to coercion, was an unlawful seizure, and that [she] would not comply.” (Id.).
After Ms. McVea refused to sign the citation, Sergeant Scott ordered Officer Swan to
place her under arrest and put her in the back of his patrol car. (Scott Aff., at 2). Ms. McVea
claims that the officers then told the two Auris Project volunteers that if all the items on the lawn
were not removed within 15 minutes, they too would be arrested. (McVea Aff. ¶ 9). The
volunteers followed the officers’ instructions and moved the property off the lawn and into either
the garage attached to the commercial structure or the house adjacent to the grassy lot.
After her arrest, Ms. McVea was transported to the San Antonio Detention Center, where
Officer Swan turned her over to detention center personnel. (Swan Aff., at 2). Ms. McVea was
told that she had to wait in the detention center for a magistrate judge to arrive. When the judge
finally arrived, however, Ms. McVea was pulled aside, issued a citation and order to appear in
court, and released from custody. (McVea Aff. ¶ 9).
Ms. McVea’s case was finally set for a jury trial on March 25, 2013. But when she
arrived at the courthouse, she was handed a document titled “Dismissal After Motion by
Prosecutor,” which stated that the cause had been dismissed due to “insufficient evidence.”
(Resp., Ex. C).
On January 21, 2014, Ms. McVea filed the present lawsuit against Officer Swan,
Sergeant Scott, FNU Bernal (later changed to Barrajas), Unknown Officer 1, and the City of San
Antonio. 5
Ms. McVea alleges violations of her constitutional rights to be free from arrest,
5
In her complaint, Ms. McVea names the San Antonio Police Department as a defendant. Under
Texas law, however, a police department has no independent capacity to be sued. See Darby v.
4
detention, search, and seizure without probable cause.
Ms. McVea also brings claims for
conspiracy under 42 U.S.C. § 1985, failure to take before a magistrate judge, malicious
prosecution, and failure to intervene.
On January 5, 2015, the City of San Antonio, Officer Swan, and Sergeant Scott filed
motions for summary judgment. The Court now considers these motions.
LEGAL STANDARDS
A.
Summary Judgment
Summary judgment is appropriate under Rule 56 of the Federal Rules of Civil Procedure
only “if the movant shows there is no genuine dispute as to any material fact and that the
movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). A dispute is genuine
only if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 254 (1986).
The party moving for summary judgment bears the initial burden of “informing the district
court of the basis for its motion, and identifying those portions of [the record] which it believes
demonstrate the absence of a genuine issue of material fact.” Celotex Corp. v. Catrett, 477
U.S. 317, 323 (1986). The burden then shifts to the nonmoving party to establish the existence
of a genuine issue for trial. Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S.
574, 587 (1986); Wise v. E.I. DuPont de Nemours & Co., 58 F.3d 193, 195 (5th Cir. 1995). The
parties may satisfy their respective burdens by tendering depositions, affidavits, and other
competent evidence. Estate of Smith v. United States, 391 F.3d 621, 625 (5th Cir. 2004).
The Court will view the summary judgment evidence in the light most favorable to the
non-movant. Griffin v. United Parcel Serv., Inc., 661 F.3d 216, 221 (5th Cir. 2011). The nonmovant must respond to the motion by setting forth particular facts indicating that there is a
genuine issue for trial. Miss. River Basin Alliance v. Westphal, 230 F.3d 170, 174 (5th Cir.
Pasadena Police Dept., 939 F.2d 311, 313 (5th Cir. 1991). Throughout this litigation, the parties have
construed Ms. McVea’s claims against the SAPD to be claims against the City of San Antonio, and the
Court will continue to do so here.
5
2000). “After the non-movant has been given the opportunity to raise a genuine factual issue, if
no reasonable juror could find for the non-movant, summary judgment will be granted.” Id.
B.
Qualified Immunity
“The doctrine of qualified immunity protects government officials from from civil damages
liability when their actions could reasonably have been believed to be legal.”
Swanson, 659 F.3d 359, 370 (5th Cir. 2011).
Morgan v.
This immunity “protects ‘all but the plainly
incompetent or those who knowingly violate the law.’” Id., at 371 (quoting Malley v. Briggs, 475
U.S. 335, 341 (1986)). Thus, courts will not deny the immunity “unless ‘existing precedent must
have placed the statutory or constitutional question beyond debate.’” Id. (quoting Ashcroft v. alKidd, –– U.S. ––, 131 S.Ct. 2074, 2083 (2011)).
A plaintiff seeking to defeat a qualified
immunity defense must show: (1) that the official violated a constitutional right, and (2) that the
right was clearly established at the time of the violation. Id.
ANALYSIS
Plaintiff asserts claims against Defendants under 42 U.S.C. § 1983 and § 1985 for false
arrest, false detention, illegal search and seizure, and conspiring to violate her constitutional
rights.
Additionally, Plaintiff asserts claims for failure to bring before a magistrate judge,
malicious prosecution, and failure to intervene. (Am. Compl., at 14-20). The Court addresses
each of these claims below.
A.
Probable Cause, False Arrest, and False Detention
Ms. McVea claims that Defendants arrested and detained her without probable cause.
(Am. Compl., at 11). “It is well established that under the Fourth Amendment a warrantless
arrest must be based on probable cause.” Hogan v. Cunningham, 722 F.3d 725, 731 (5th Cir.
2013).
Probable cause for a warrantless arrest exists when the totality of
facts and circumstances within a police officer’s knowledge at the
moment of the arrest are sufficient for a reasonable person to
conclude that the suspect had committed or was committing an
offense. Although probable cause requires more than a bare
6
suspicion of wrongdoing, it requires substantially less evidence
than that sufficient to support a conviction.
United States v. Wadley, 59 F.3d 510, 512 (5th Cir. 1995) (internal citations omitted). The
circumstances of the arrest must be “viewed in light of the observations, knowledge, and
training” of the law enforcement officers on the scene. United States v. Ho, 94 F.3d 932, 936
(5th Cir. 1996).
Defendants maintain that Officer Swan and Sergeant Scott had probable cause to
believe Ms. McVea was conducting a garage sale without a permit, in violation of § 16-296 the
San Antonio City Code (“City Code”). See SAN ANTONIO CITY CODE § 16-296 (“It shall be a
violation of this article for any person to operate or participate in the operation of a garage sale
without first obtaining the proper permit from the director.”). Ms. McVea, on the other hand,
maintains that violating this ordinance—which she calls an “administrative violation”—is not
something the officers had statutory authority to arrest her for. (Resp., at 7). And even if the
officers did have authority to arrest someone for violating this ordinance, Ms. McVea claims that
they lacked sufficient probable cause to believe she had violated it.
As an initial matter, the Court notes that San Antonio police officers do have statutory
authority to issue a citation, and sometimes make a custodial arrest, for operating a garage sale
without a permit.
When statutorily permitted, Texas police officers are allowed to make
custodial arrests for violations of municipal codes. See TEX. CODE. CRIM. PROC. § 1401(b) (“A
peace officer may arrest an offender without a warrant for any offense committed in his
presence or within his view.”) (emphasis added); see also McGaughy v. City of Houston, 77 F.
App’x 280, 282 (5th Cir. 2003) (holding that a police officer had probable cause to arrest the
defendant for a Class C misdemeanor city ordinance fire code violation). Section 25-1 of the
City Code states that it is the duty of the police to “enforce and prevent the violation of this Code
and all laws of the state and ordinances of the city.” SAN ANTONIO CITY CODE § 25-1. Under the
City Code, operating a garage sale without a permit is a violation of § 16-296 and is considered
7
an arrestable offense under § 25-5, which acknowledges that a person can be “arrested by a
city police officer for any violation” of the City Code or an ordinance of the city. SAN ANTONIO
CITY CODE § 25-5. In general, when an arrest like this is made, the officer would issue a
citation, then, after the violator signs the citation, the officer would release the violator from
custody. See SAN ANTONIO CITY CODE § 25-5(a). In certain circumstances, however, the officer
is prohibited from issuing a misdemeanor citation. See SAN ANTONIO CITY CODE § 25-1(b)(8).
Under SAPD General Manual Procedure 505, 6 officers are not allowed to issue citations when a
violator refuses to sign the citation. (Officer’s Mot. Summ. J., Ex. C, at 5-6). Thus, when a
person refuses to sign a citation for violating a city ordinance, the arresting officer is
authorized—or more accurately, required—to make a custodial arrest. (See id.).
But just because officers have statutory authority to arrest someone for refusing to sign a
citation does not mean Officer Swan and Sergeant Scott had probable cause to arrest Ms.
McVea in this situation. And indeed, Ms. McVea argues that the officers “knew that they had no
probable cause . . . but took deliberate actions that violated [her] constitutional rights and
protections anyway.” (Am. Compl., at 8-11). Accordingly, the Court now turns to whether the
circumstances within the officers’ knowledge at the moment of the arrest were sufficient for a
reasonable person to conclude that Ms. McVea was committing an offense. See Wadley, 59
U.S. at 512.
Ms. McVea admits she was conducting a sale at 1614 Martin Luther King Drive on the
day of the arrest. (Resp., at 3). Ms. McVea also admits that the area where she was having the
sale looked like the backyard of a house, (McVea Depo., at 134), and Officer Swan asserts that
the property “appeared to be a residence” to him. (Swan Aff., at 1). It is further stipulated that
6
Ms. McVea alleges for the first time in her response to the Defendants’ motions for summary
judgment that SAPD General Manual Procedure 505 is unconstitutional. This claim, however, is not
properly before the Court. Cutrera v. Board of Sup’rs of Lousiana State University, 429 F.3d 108, 113
(5th Cir. 2005) (“A claim which is not raised in the complaint but, rather, is raised only in response to a
motion for summary judgment is not properly before the court.”). Accordingly, the Court will not address
the merits of Ms. McVea’s constitutional challenge.
8
the items for sale were distributed across the yard, and that that the sale was open to the public.
(Id., Ex. B, at 19). Finally, the officers on the scene knew that holding a garage sale without a
permit was a violation of the City Code. (Swan Aff., at 3; Scott Aff., at 2). 7
Under these circumstances, a reasonable officer could conclude that Ms. McVea was
violating the City Code provision that prohibited conducting a garage sale without a permit.
Therefore the officers had authority to issue Ms. McVea a misdemeanor citation, and when she
refused to sign the citation, to place her under custodial arrest. Although arresting someone for
a City Code violation for failing to obtain a garage sale permit may seem heavy-handed, it is
well settled that “if an officer has probable cause to believe that an individual has committed
even a very minor criminal offense in his presence, he may, without violating the Fourth
Amendment, arrest the offender.” Atwater v. City of Lago Vista, 532 U.S. 318, 354 (2001)
(holding that it was constitutionally permissible to arrest an individual for failing to wear a seat
belt). And in this situation the arrest did not stem from the violation itself, but rather from Ms.
7
In a Motion to Strike (Dkt. #74) filed the same day as her Response to Defendants’ Motions for
Summary Judgment, Ms. McVea claims that Sergeant Scott lacked the personal knowledge necessary to
conclude that there was probable cause because he called someone at the code compliance office to ask
about San Antonio’s permit requirements. (Mot. to Strike ¶ 8). But this actually cuts against Ms. McVea’s
argument. Even if Sergeant Scott originally lacked sufficient information to make a probable cause
determination, he remedied this by calling someone to ask about the specifics of the ordinance. And
although Ms. McVea argues that the portions of Sergeant Scott’s affidavit that discuss this call are
hearsay, Sergeant Scott is not offering the employee’s statements as proof of the matter asserted.
Rather, Sergeant Scott is using the code compliance office employee’s statements as further proof that
he had probable cause to believe Ms. McVea was violating the City Code. See Dumans v. Fort Bend
County, No. 4:08-cv-01359, 2009 WL 7808946, at *1 n.5 (S.D. Tex. June 29, 2009) (finding that
statements gathered by investigator were submitted as evidence of probable cause, not for truth of the
matter asserted); see also Gonzales v. Thaler, 643 F.3d 425, 428 (5th Cir. 2011) (holding that arresting
officer’s statement affirming that the arrestee was the robber was hearsay because probable cause for
the arrest was not in dispute, and thus the statement could have only been offered as proof of the matter
asserted).
In addition to this argument, Ms. McVea claims that several other statements contained in
Sergeant Scott’s affidavit are inadmissible. While most of these claims are without merit, Ms. McVea is
correct about one statement: Sergeant Scott’s declaration that “[t]here was probable cause to arrest Ms.
McVea.” This is a legal conclusion, not an assertion of a fact, and police officers as lay witnesses are
generally prohibited from testifying about legal opinions. FED. R. EVID. 701; United States v. El-Mezain,
664 F.3d 467, 511 (5th Cir. 2011). Therefore the Court grants Ms. McVea’s motion to strike insofar as it
pertains to this statement and denies it on all other grounds.
9
McVea’s ardent refusal to sign a promise to appear in court. 8 Therefore, Ms. McVea’s claims
for false arrest and false detention are dismissed.
B.
Illegal Search and Seizure of Property
The Fourth Amendment protects “[t]he right of the people to be secure in their persons,
houses, papers, and effects, against unreasonable searches and seizures.” “As the text makes
clear, ‘reasonableness’ is ‘the ultimate touchstone of the Fourth Amendment.’” Trent v. Wade,
776 F.3d 368, 377 (5th Cir. 2015) (quoting Fernandez v. California, ––– U.S. ––––, 134 S.Ct.
1126, 1132 (2014)). Ms. McVea asserts that her property was both unconstitutionally searched
and seized by Officer Swan and Sergeant Scott on the day of the arrest. (Am. Compl., at 1112).
1. Search of Ms. McVea’s Property
In general, warrantless searches are per se unreasonable under the Fourth Amendment.
Schneckloth v. Bustamonte, 412 U.S. 218, 219 (1973).
But this bedrock principle of
constitutional law is subject to several specific exceptions. Id. For example, an officer acts with
objective reasonableness in entering a house to effectuate an arrest if he has probable cause to
believe the person has committed a criminal offense. Graham v. Connor, 490 U.S. 386, 396
(1989).
Likewise, the presence of exigent circumstances may permit a search or seizure
without a warrant.
Coolidge v. New Hampshire, 403 U.S. 443, 474-75 (1971).
Finally, of
course, entry is unobjectionable if the property owner’s consent is obtained. Florida v. Jimeno,
500 U.S. 248, 250-51 (1991) (clearly reasonable for police to conduct search once permitted to
do so); Schneckloth, 412 U.S. at 219 (same).
8
While Ms. McVea concedes that she refused to sign the misdemeanor citation, she claims that
she has a justifiable reason for doing so: the officers said that if she signed, she would have to shut down
the sale, and the officers had no authority to do this. First, the Court notes that San Antonio police
officers are charged not only with “enforcing” the City Code, but also with “preventing [its] violation.” SAN
ANTONIO CITY CODE § 25-1. Regardless, it is undisputed that Ms. McVea was presented a misdemeanor
citation, and that she refused to sign it. Therefore, pursuant to SAPD Manual Procedure 505, the officers
were required to arrest Ms. McVea.
10
Here, it is unclear that Sergeant Scott conducted a “search” of Ms. McVea’s property in
the first place. While the Court is mindful that “a police officer’s mere entry or trespass into a
home without consent is enough to constitute a ‘search’” under the Fourth Amendment, Dalcour
v. City of Lakewood, 492 F. App’x 924, 931 (10th Cir. 2012), the circumstances of this particular
encounter persuade the Court that no constitutional deprivation took place. First, the sale was
outside and open to the public, so there was already a diminished expectation of privacy.
Second, it was Ms. McVea who called the SAPD to the scene, so to the extent that her
warrantless search claim pertains to the area where the sale was taking place, she invited the
officers to the property.
Third, although Sergeant Scott did follow Ms. McVea into the
commercial structure, he did so without any objection and was never accused of searching
through anything while inside.
Ms. McVea even engaged the officer while he was inside,
showing him a check with the Auris Project’s name on it as evidence that she was not
conducting a garage sale on residential property. And Fourth, Ms. McVea’s claims are based
on her contention that the property at issue was commercial property, namely, the property of
the Auris Project.
Thus, she cannot now invoke the same level of Fourth Amendment
protections which would be afforded her residence. See New York v. Burger, 482 U.S. 691, 700
(1987) (acknowledging that although the protections of the Fourth Amendment extend to
commercial property, “[a]n expectation of privacy in commercial premises . . . is different from,
and indeed less than, a similar expectation in an individual’s home”). Under these particular
circumstances, the Court concludes that Sergeant Scott did not violate Ms. McVea’s
constitutional right to be free from warrantless searches.
But even if this did constitute a violation of Ms. McVea’s Fourth Amendment rights,
Sergeant Scott is entitled to qualified immunity.
As the analysis above indicates, whether
Sergeant Scott’s entry into the commercial structure constituted a warrantless search is not
“beyond debate.” Thus because it was not clearly established that this conduct violated the
Fourth Amendment, Sergeant Scott is entitled to qualified immunity.
11
2. Seizure of Ms. McVea’s Property
To prove an unconstitutional seizure, a plaintiff must first show that there was “some
meaningful interference with [his or her] possessory interest in that property.” Soldal v. Cook
County, Ill., 506 U.S. 56, 61 (1992) (quoting United States v. Jacobson, 466 U.S. 109, 113
(1984)). Only if a court concludes that a seizure has occurred will it then consider the seizure’s
reasonableness—an inquiry requiring “careful balancing of governmental and private interests.”
Id., at 71 (quoting New Jersey v. T.L.O., 469 U.S. 325, 341 (1985)).
As a preliminary matter, the Court questions whether Ms. McVea had a possessory
interest in the property that was being sold. Ms. McVea has repeatedly claimed that the auris
Project was holding the sale, and therefore it follows that the nonprofit—not Ms. McVea—had
the possessory interest in the property.
But even if Ms. McVea did have some possessory interest in the property, the interest
was never “meaningfully interfered” with. Ms. McVea only alleges that the Auris volunteers
were required to move the property from the lawn into one of the two buildings adjacent to it.
(McVea Depo., at 54). And she concedes that when she left the San Antonio Detention Center
and returned to the property, all of the Auris project’s donations were there. (Id. at 52). So the
only time Ms. McVea was removed from her property was when Officer Swan lawfully placed
her under arrest and transported her to the detention center. This was not a “meaningful
interference” with Ms. McVea’s possessory interest in her property; thus, Ms. McVea’s claim
that her property was unconstitutionally seized is dismissed. Cf. Arizona v. Hicks, 480 U.S. 321,
324 (1987) (holding that simply moving an object to record a serial number did not “meaningfully
interfere” with an individual’s possessory interest).
12
C.
Conspiracy
Ms. McVea also alleges that Defendants conspired to deprive her or her constitutional
rights under 42 U.S.C. § 1985(3). 9 Ms. McVea appears to base her claim on three arguments:
(1) that there is a wide-spread conspiracy involving the SAPD to deprive poor black residents of
their constitutional rights, (2) that the SAPD was retaliating against her for previous lawsuits she
has brought against them, and (3) that Officer Swan and Sergeant Scott conspired with a third
party on the day of the arrest to deprive her of her right to hold a fundraising sale, as evidenced
by Sergeant Scott’s phone call to an undisclosed code enforcement officer at the police station.
(Am. Compl., at 15-19).
To state a claim under § 1985(3), a plaintiff must allege:
(1) the defendants conspired (2) for the purposes of depriving,
either directly or indirectly, any person or class of persons of the
equal protection of the laws, or of equal privileges and immunities
under the laws, and (3) one or more of the conspirators committed
some act in furtherance of the conspiracy; whereby (4) another
person is injured in his person or property or deprived of having
and exercising any right or privilege of a citizen of the United
States; and (5) the action of the conspirators is motivated by a
racial animus.
Horaist v. Doctor’s Hosp. of Opelousas, 255 F.3d 261, 270 n.12 (5th Cir. 2001).
Despite Ms. McVea’s numerous conspiracy allegations, she has been unable to offer
any evidence that Officer Swan, Sergeant Scott, the City of San Antonio, or anyone else
conspired to deprive her of her constitutional rights.
In fact, Ms. McVea declined to even
address these claims in her response to Defendants’ motions for summary judgment, claiming
that due to the “continued harassment of Plaintiff and the improprieties and irregularities that
9
Ms. McVea also brings a conspiracy claim under §1985(2). Section 1985(2) proscribes
conspiracies “to deter, by force, intimidation, or threat, any party or witness in any court of the United
States from attending such court, or from testifying to any matter pending therein, freely, fully, and
truthfully, or to injure such party or witness in his person or property on account of his having so attended
or testified.” 42 U.S.C. § 1985(2). Ms. McVea, however, does not claim that Defendants aimed to
interfere with her participation in a judicial proceeding. Therefore, the Court will focus its analysis on Ms.
McVea’s conspiracy claim under § 1985(3).
13
defined the discovery period of this cause of action” she would be “unable to pursue her charge
of conspiracy.” (Resp., at 2). Regardless, a cursory look at the record makes it clear that no
reasonable jury could find for Ms. McVea on her conspiracy claims.
Most importantly, Ms. McVea has been unable to show that any of the Defendants
conspired together for any purpose. Although Ms. McVea was thoroughly questioned on the
alleged conspiracy during her deposition, she refused to answer questions that asked for
concrete details, claiming that the answers were “privileged information related to legal
strategy.” (McVea Depo., at 56-61). And although Ms. McVea provided the names of many
people who were allegedly involved in this conspiracy, 10 she never presented any evidence that
these people communicated with—or even knew—each other before or after her arrest. (See
id.).
Moreover, while all parties stipulate that Sergeant Scott called a third party before
making the arrest, Ms. McVea has provided no evidence to suggest that this call was made in
furtherance of a conspiracy. In contrast, Sergeant Scott’s affidavit testimony explains that he
called the City Code Compliance Office to determine whether the ordinance requiring a permit
10
The following comes from Ms. McVea’s deposition and identifies the individuals that she claims
conspired against her:
Q: Now you said that there’s a conspiracy. Can you identify for me
everybody that you contend is in the conspiracy?
A: I can’t give you all of them because I’m going to object to some of
them on the basis that in order to give you all of them, I would be giving
you privileged legal strategy information.
Q: Well, ma’am, I’m asking you –
A: I can give you—I can give you the stuff that you can handle, which is
Swan, Scott, Phelan—these are all SAPD officers. Swan, Scott, Phelan,
Freeman, Pelfrey, Mendoza, Combs, Kristina Combs, the attorney,
Ofelia Lisa Hernandez, the notary. Eric—Eric Hernandez, her boyfriend
or husband. I don’t know. Todd Lipscomb. A lawyer by the last name of
Loree. Tommy Hernandez. . . . Mark Kosanovich, Michael Siemer, Pablo
Rivera, David Galbreath. . . . Barbara Nellermoe, Michael Mery, Antonia
Arteaga, Scott Roberts, Tiffany Duong, Diana Gains, Brett Van Galloway,
Aaron Eckmann, Matthew Ludwig, Cantu. I can share those with you.
(McVea Depo., at 56-61).
14
for garage sales was still in effect.
(Scott Aff., at 1). Ms. McVea expresses doubt that he was
calling the Code Compliance Office because she claims that this office was closed for Martin
Luther King Day.
(Resp., Ex. A, at 4).
But even if Sergeant Scott did not call the Code
Compliance Office, Ms. McVea has pointed to no evidence that the call was made in
furtherance of a conspiracy to deprive her of her constitutional rights. Therefore, the Court finds
that Defendants are entitled to summary judgment on Ms. McVea’s conspiracy claims brought
under 42 U.S.C. § 1985.
D.
Failure to Bring Before a Magistrate Judge
Ms. McVea also claims that Defendants violated her rights under the Texas Code of
Criminal Procedure for failing to bring her before a magistrate judge after her arrest. She states
that after she was transported to the detention center by Officer Swan, she was told to wait
there until the magistrate judge arrived. After the judge arrived, however, Ms. McVea asserts
that she was taken out of line, given a citation requiring her to appear in court at a later time,
and then released. (Am. Compl., at 11). Defendants do not dispute that Ms. McVea was
released before given the chance to appear before a magistrate, but rather argue that she does
not have a viable claim against Defendants for these actions.
It is not at all clear that releasing Ms. McVea before she was able to appear before a
magistrate judge violated the Texas Code of Criminal Procedure. As stated in Article 14.06(b),
“[a] peace officer who is charging a person . . . with committing an offense that is a Class C
misdemeanor . . . may, instead of taking the person before a magistrate, issue a citation to the
person that contains written notice of the time and place the person must appear before a
magistrate.” TEX. CODE. CRIM. PROC. 14.06(b). And although under SAPD Manual Procedure
505, Officer Swan was forced to place Ms. McVea under custodial arrest for refusing to sign her
citation, the Texas Code of Criminal Procedure makes no requirement that a Defendant must
sign a citation before it is issued. So the officer at the detention center may have had authority
under Article 14.06(b) to release Ms. McVea before she went before the magistrate judge.
15
But more fundamentally, the Court finds that Ms. McVea lacks standing to bring this
claim. Although the parties did not brief the issue of constitutional standing, the court “must—
where necessary—raise [standing issues] sua sponte.” Ford v. NYLCare Health Plans of Gulf
Coast, Inc., 301 F.3d 329, 331-32 (5th Cir. 2002). In order to establish Article III standing, a
plaintiff must show “(1) an ‘injury in fact,’ (2) a sufficient ‘causal connection between the injury
and the conduct complained of,’ and (3) a ‘likel[ihood]’ that the injury ‘will be redressed by a
favorable decision.’” Susan B. Anthony List v. Driehaus, —— U.S. ——, 134 S.Ct. 2334, 2341
(2014) (quoting Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-561 (1992)).
Here, Ms. McVea has failed to establish each of these three elements. Although she
was initially denied the opportunity to appear before a magistrate judge, she was provided a
citation to appear before the judge at a later date. Moreover, all charges against her were
dismissed after a motion by the prosecutor. (Resp., Ex. C). Thus, the only harm that Ms.
McVea suffered by being taken to the detention center was being forced to end her sale. But,
as explained above, the arresting officers had probable cause to believe Ms. McVea was
violating a municipal ordinance, and were required by SAPD procedural rules to make a
custodial arrest. And this harm would have been the same regardless of whether or not she
had been taken to a magistrate. Therefore, Ms. McVea has suffered no injury in fact—or at
least no injury that resulted from the denial of a probable cause hearing—and her claim is not
likely to be redressed by a favorable judicial decision. Therefore, Ms. McVea lacks standing to
assert a claim for failure to bring before a magistrate judge, and accordingly, this claim is
dismissed.
E.
Malicious Prosecution
Ms. McVea also alleges that Defendants “violated her constitutional right[ ] to be free
from . . . malicious prosecution when they arrested, transported, and detained her under the
pretext of not possessing a municipal administrative permit to conduct a garage sale at her
place of business.” (Am. Compl., at 1). The Fifth Circuit has found, however, that there is no
16
freestanding cause of action under § 1983 for “malicious prosecution.”
See Castellano v.
Fragozo, 352 F.3d 939, 945 (5th Cir. 2003) (“[W]e conclude that no . . . freestanding
constitutional right to be free from malicious prosecution exists.”). Rather, because the term
“malicious prosecution” can be used to describe “a wide range of events attending a filing of
criminal charges,” courts insist for “clarity in the identity of the constitutional violations asserted.”
Id. Therefore, to the extent that Ms. McVea’s malicious prosecution claim is brought under
§ 1983, her claim is dismissed.
It is possible, however, that Ms. McVea intended to bring a claim for the state law tort of
malicious prosecution. Under this theory, Ms. McVea would be required to show that someone
“initiate[d] or procure[d] the initiation of criminal proceedings against [her], for an improper
purpose and without probable cause therefor.” Id. (quoting FOWLER V. HARPER, ET AL., THE LAW
OF
TORTS § 4.1 (3d ed. 1996)). Here, it has already been established that the officers had
probable cause to believe Ms. McVea was violating a city ordinance. Thus, Ms. McVea’s claim
for the state law tort of malicious prosecution is similarly unavailing.
F.
Failure to Intervene
Finally, Ms. McVea claims that Defendants “[f]ailed to intervene to protect plaintiff from
violation of plaintiff’s civil rights by one or more other defendants.” (Am. Compl., at 12). 11 It
appears that Ms. McVea is alleging that one or more of the Defendants witnessed a violation of
her constitutional or legal rights, but then failed to intervene to stop the violation. To implicate
an officer’s duty to intervene, however, there must be an underlying unconstitutional or illegal
act. See Spencer v. Rau, 542 F. Supp. 2d 583, 594 (W.D. Tex. 2007) (holding that because
there was no underlying act of excessive force, plaintiff’s claim that defendant failed to intervene
to prevent excessive force failed). As the analysis above shows, Ms. McVea has failed to
11
Although none of the Defendants directly address Plaintiff’s claim for failure to intervene in their
motions for summary judgment, Defendants do address the preliminary question of whether there was a
constitutional deprivation. Thus, the Court will construe their arguments regarding the underlying
constitutional issues as arguments against this claim.
17
establish that she suffered any constitutional or legal harm, and therefore, her claim for failure to
intervene against officer Swan and Sergeant Scott fails.
Likewise, Ms. McVea’s claim for failure to intervene against the City of San Antonio fails
for the same reason.
“Under the decisions of the Supreme Court and [the Fifth Circuit],
municipal liability under section 1983 requires proof of three elements: a policymaker; an official
policy; and a violation of constitutional rights whose ‘moving force’ is the policy or custom.”
Piotrowski v. City of Houston, 237 F.3d 567, 578 (5th Cir. 2001) (quoting Monell v. Dep’t of
Social Services, 426 U.S. 658, 694 (1978)). Again, Ms. McVea has not established that she
suffered an underlying violation of her constitutional rights. Therefore she is unable to establish
municipal liability under section 1983, and her claim for failure to intervene against the City of
San Antonio is dismissed.
G.
Failure to Prosecute
In addition to Defendants Officer Swan, Sergeant Scott, and the City of San Antonio, Ms.
McVea brought claims against SAPD Officer FNU Barrajas and “Unknown Officer 1.” These
Defendants, however, have never appeared in this lawsuit, and all parties in this action have
moved forward as if they are no longer part of the litigation. Under these circumstances, the
Court finds that it should exercise its discretion to dismiss the action as to these Defendants for
failure to prosecute. FED. R. CIV. P. 41(b); Larson v. Scott, 157 F.3d 1030, 1031 (5th Cir. 1998)
(“A district court sua sponte may dismiss an action for failure to prosecute or to comply with any
court order.”).
CONCLUSION
For the foregoing reasons,
IT IS ORDERED that Defendants Joseph Swan and Daniel Scott’s Motion for Summary
Judgment (Dkt. #62) is GRANTED.
IT IS FURTHER ORDERED that Defendant City of San Antonio’s Motion for Summary
Judgment (Dkt. #63) is GRANTED.
18
IT IS FURTHER ORDERED that Plaintiff Denise McVea’s Motion to Strike (Dkt. #74) is
GRANTED in part and DENIED in part.
IT IS FURTHER ORDERED that Plaintiff Denise McVea’s Motion for Sanctions and a
Request for Default Judgment (Dkt. #81) is DENIED.
IT IS FURTHER ORDERED that Plaintiff Denise McVea’s claims against Defendants
SAPD Officer Barrajas and Unknown Officer 1 are DISMISSED for lack of prosecution.
SIGNED on July 17, 2015.
_______________________________
ROBERT L. PITMAN
UNITED STATES DISTRICT JUDGE
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