Smith v. Tullis
Filing
42
ORDER GRANTING IN PART AND DENYING IN PART 32 Motion for Summary Judgment. The Court DENIES Defendants qualified immunity and DISMISSES WITH PREJUDICE all state law claims. Signed by Judge David A. Ezra. (rg)
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF TEXAS
SAN ANTONIO DIVISION
JASON BOYD SMITH,
Plaintiff,
vs.
MARIA ANGELINA TULLIS and
GERALDO MORALES REYNA,
Defendants.
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No. 5:15-CV-493-DAE
ORDER GRANTING IN PART AND DENYING IN PART MOTION FOR
SUMMARY JUDGMENT
Before the Court is a Motion for Summary Judgment filed by
Defendants Maria Angelina Tullis and Geraldo Morales Reyna (collectively, the
“Defendants”). (Dkt. # 32.) On November 22, 2016, the Court heard argument on
the motion: John T. Flood, Esq. appeared on behalf of Plaintiff Jason Boyd Smith
(“Plaintiff” or “Smith”), and Charles S. Frigerio, Esq. appeared on behalf of the
Defendants. After careful consideration of the memoranda filed in support of and
in opposition to the pending motion, as well as the arguments made at the hearing,
the Court, for the reasons that follow, GRANTS IN PART and DENIES IN
PART the Motion for Summary Judgment (Dkt. # 32).
1
BACKGROUND
This case arises out of a series of events, culminating in an incident at
the Frio County Clerk’s Office (the “Frio Clerk’s Office”) that resulted in
Plaintiff’s arrest two years later.
I.
The Frio County Clerk’s Office
To understand this case, it is necessary to review the functions,
responsibilities, and operations of the Clerk’s Office. The Frio County Clerk is
Plaintiff Maria Angelina Tullis (“Clerk Tullis”), and her two deputy clerks are
Monica Segovia (“Segovia”) and Esmeralda Cano (“Cano”). Like almost any
county clerk’s office, the Frio Clerk’s Office is the repository of all official records
filed and maintained in Frio County. Such records include, inter alia, land deeds,
birth certificates, death certificates, and juvenile criminal records. (“Cano Dep.,”
Dkt. # 32-
When an individual files an official public
record (“OPR”) such as a land deed, birth certificate, or death certificate, the
document is scanned and turned into a digital image. 1 (“Tullis Dep.,” Dkt. # 36-16
However, Frio Clerk’s Office employees give contradictory
testimony about whether the actual juvenile records are digitized or kept solely in
1
Under Texas law, birth records become public information on and after the 75th
anniversary of the date of birth and death records become public information on
and after the 25th anniversary of the date of death. Tex. Gov’t Code
§
Otherwise, such records are considered confidential.
2
paper format. (Compare “Segovia Dep.,” Dkt. # 32-
with “Cano
Unlike OPRs, juvenile records are
confidential, not public information, and thus segregated from OPRs. Tex. Code
Crim. Proc. Ann. art. 44.2811.
To manage its records, the Frio Clerk’s Office retained Local
Government Solutions (“LGS”) to install software called DataPoint. (“Price
Decl.,” Dkt. # 36-7 at 1.) DataPoint maintains a listing of information describing
the digitized files recorded by the Frio Clerk’s Office. (Id.) For example, when a
Frio Clerk’s Office employee scans a land deed into a digital image, that image is
saved onto an “Image Server” and DataPoint automatically records information
about that deed such as its legal description, instrument description, filing date,
volume in which it was recorded, and whether a grantor or grantee filed it. (Id.;
Dkt. # 36-3.) This information on DataPoint is commonly referred to as an index.
(Price Decl.) Frio County managed the “Imager Server” on which all OPRs were
saved, (“McKenzie Dep.,” Dkt. 36-
S managed the
server containing the index of those imaged files. (Id.)
To facilitate the public’s access to OPRs, the Frio Clerk’s Office
installed two computer terminals available to the public to search public records.
(Tullis Dep.
ing the DataPoint program on the public
computer, a user could enter a date range for a particular type of document, hit the
3
search button, and see an index of all relevant documents. (McKenzie Dep. at
48:10 17.) Once an index was populated, a user could print the index and
purchase it, or save the index as a digital file. (Id.
However, LGS
installed a restricted version of DataPoint on the public computers, which
prevented the public-user from accessing restricted files and confidential
information through DataPoint, such as juvenile records, and certain birth and
death records. 2 (Price Decl. at 2; McKenzie Dep. at
Nevertheless, depending on the security maintained on the Image Server by the
Frio Clerk’s Office, a user of the public terminal could, at least in theory, access
the digital images of OPRs and confidential records by navigating to the mapped
While
neither party has submitted evidence to demonstrate exactly what security
measures existed at the relevant time period that would prevent a public-user from
accessing the Image Server through the public computers, Clerk Tullis has testified
that the public computers are password protected and thus cannot access juvenile
II.
TexasFile’s Public Access to Information Requests
Plaintiff is the president of TexasFile, a company in the business of
obtaining land deeds from Texas counties, and then selling those records to
2
LGS installed a “full-access” version of DataPoint on computers used only by
Frio Clerk’s Office staff.
4
customers for one dollar per page from its website. (“Smith Dep.,” Dkt. # 36-14 at
request, pursuant to Chapter 552 of the Texas Government Code, to the Frio
Clerk’s Office seeking an electronic copy of “any real property documents and/or
indices that are maintained in digital form.” (Dkt. # 36-8 at 2.) Clerk Tullis
responded to the request that her office sold CDs containing the digital images of
the real property records, but was unable to provide the indices of those records in
Clerk Tullis testified that while the
Frio Clerk’s Office had the capability to produce digital indices through DataPoint,
her employees did not know how to extract the indices into a useable digital
format. (Id.
TexasFile sent additional public information requests to the Frio Clerk’s Office
seeking the same electronic copies of recorded real property indices that are
maintained in digital form. (Dkt. # 36-8.) In response to these requests, Clerk
Tullis testified that she let TexasFile know that OPR images were available on
Plaintiff’s testimony corroborates Clerk Tullis’ testimony. (Smith Dep. at
not search the Frio County property records on his company’s website. (Id. at
5
III.
The Incident
On July 18, 2012, Plaintiff visited the Frio Clerk’s Office seeking to
obtain an electronic index for purchase. (Id.
It is undisputed that
Plaintiff accessed one of the public computers with the restricted version of
DataPoint. However, the parties disagree on what happened next. Plaintiff
testified that he accessed DataPoint, determined that the program could produce a
digital index of Frio County’s real property records, and then saved a copy of that
index to the computer’s desktop. (Id.
testified that she
observed Plaintiff on the public computer and “saw that the screen that he had on
the computer was not something I recognized. It was letters, numbers that I had
Clerk Tullis directed her deputy
Segovia to investigate. (Id.
Segovia approached the public terminal and testified that she too did
not recognize the screen because it was a different color than the typical DataPoint
screen.3 (“Segovia Dep.,” Dkt. # 32-5 at 72:
Segovia asked Plaintiff what
he was doing, and it is undisputed that Plaintiff tried to show Segovia what he was
doing, and that the electronic index was available on the computer. (Id. at 75:17;
323
) Indeed,
Segovia also testified that she observed Plaintiff remove a thumb-drive, an
allegation that Plaintiff denies. For the purposes of this lawsuit, this allegation is
immaterial because it was not presented to the Justice of the Peace in her
determination of probable cause. (See “Reyna Dep.,” Dkt. # 326
Segovia specifically testified that “[h]e said that he was trying to get an index out
Segovia testified that she refused his assistance and informed him that LGS would
train the Frio Clerk’s Office staff how to export the digital index. (Id.
Segovia further testified that Plaintiff told her that he had emailed some documents
to himself (Id.
testified that he “specifically recall[s] explaining to [Segovia] how [the index]
Plaintiff from the public computer “to make sure that he wasn’t doing something
that he was not supposed to be doing.” (Segovia
walked to the front desk, where Plaintiff identified himself by name and that he
iff continued to argue over whether the
Frio Clerk’s Office would provide him a copy of the electronic public index.4
After Plaintiff left, Clerk Tullis testified that,
I thought about it. And I said, we don’t know what he took. We don’t
know what he extracted from our public computer. Do we know that
this man could do something, you know, hack our computers and take
all our records? Is he somebody from the outside, you know? We
didn’t know. And I said, he just stole all my records. And I got real
4
It is undisputed that the electronic index is a public record of which Plaintiff, and
any Texas citizen, had a right of access.
7
upset. And I said, somebody has just stole [sic] all our records
without our knowledge, you know. What did he take? Was this a
knowledgeable person that knew how to hack into the computer and
get all our documents? Did he take all our births, did he take all our
juveniles, did he take all our marriages, deaths? And so we didn’t
know. So I got real nervous and I said, we need to report this to
somebody. So we reported it.
(Tullis
folks on the jury, and the judge, all of the investigation you did before reaching the
conclusion that Mr. Smith had . . . stolen all [your] records.” (Id. at 13
Clerk Tullis answered, “[b]ecause he was at a site that I did not recognize. And I
don’t know how much knowledge this young man had [of] computers, or what he
had taken from [the public computer]. I had no knowledge. And to this day, I
don’t know what he took.” (Id.
As a result of Clerk Tullis’ concerns, her office contacted codefendant Geraldo Morales Reyna (“Sheriff Reyna) of the Frio County Sheriff’s
Department. (“Reyna Dep.,” Dkt. # 32-
During his investigation,
Sheriff Reyna testified that he took Clerk Tullis’ statement (id. at 38:10), found no
evidence that Plaintiff took anything (id.
saw the digital index that
Plaintiff saved onto the desktop (id.
see “Digital Index,” Dkt. # 36-
3 Ex. 2), did not have the public computer forensically investigated (Reyna Dep. at
id.
never investigated whether Plaintiff actually emailed documents to himself (id. at
8
59
never investigated the allegation that Plaintiff allegedly used a thumb-
drive on the public computer (id.
(id.
Meanwhile, on July 20, 2012, Plaintiff sent a letter to the Attorney
General of Texas requesting assistance in obtaining an electronic index from the
Frio Clerk’s Office. (Dkt. # 32-10.) In the letter, Plaintiff summarized TexasFile’s
repeated public information requests for electronic indices of the Frio County
public property records, explained that he had accessed a public computer two days
prior, saved a couple years of Frio County electronic index records, and briefly
described that the Frio Clerk’s Office refused to provide him an electronic copy of
the indices. (Dkt. # 32-10.) In response, the Frio Clerk’s Office retained counsel
to defend its actions.
IV.
The Probable Cause Determination and Arrest
On August 14, 2012, Clerk Tullis gave a signed, written statement to
Sheriff Reyna describing the incident with Plaintiff. Clerk Tullis wrote in whole,
On July [] 2012 a gentlemen walked into our office and went to
the vault where our records [and] OPRs are stored. After a
while he came back into our front office and wanted to know if
we had the indexes in CDs. Monica Segovia proceeded to tell
him no, not at this time. He went back to the public computer
and started to look for records, as I went to the back room I
noticed he was not on the site of our OPR records. He had
another (unfamiliar to me) screen up and was typing in
something. I came back and told Monica I think he is
somewhere he is not suppose [sic] to be. Monica got up and
9
stood behind him and observed what site he was in and told him
he had no right to be there. He told Monica I just sent all this
information to myself through email. Monica asked him to
please come to the front desk to talk to us. He came and
proceeded to tell us how he had done it and who he was. He
said he was Jason CEO and owner of TexasFile. He fumbled
through his suitcase but never gave us his card, either he could
not find it or did not want to give us his card. Monica informed
him that he had no right to be at that site where he was. He
informed us as he was walking out that he was going to let the
Attorney General [know] that we would not give or sell him
indices. As of today we don’t know what he took from our
computer. Some of our records are confidential like deaths,
juveniles, and births.
(“Tullis Statement,” Dkt. # 36-
On October 5, 2012, Frio County
Attorney Hector Lozano (“Lozano”) determined that probable cause existed to file
criminal charges of theft or tampering with a governmental record against Plaintiff.
(Dkt. # 32-4 at 2.) Lozano based his probable cause determination, at least in part,
on the fact that Segovia alleged to have seen Plaintiff remove a flash drive from the
public computer. (Id.)
On October 10, 2012, Clerk Tullis signed a criminal complaint under
oath that she had “personal knowledge” that Plaintiff “intentionally or knowingly
possesse[d] a governmental record to-wit: FRIO COUNTY CLERK OFFICIAL
PUBLIC RECORDS OPR Record (Death Juveniles and Birth Certificates, with
knowledge that it was obtained unlawfully.” (“Complaint,” Dkt. # 36-4 at 9.) The
Complaint states that such conduct violates Texas Penal Code § 37.10, a third
degree felony.
10
Sheriff Reyna took Clerk Tullis’ written statement, a narrative he had
typed which is substantially similar to Clerk Tullis’ statement, and Clerk Tullis’
sworn complaint form to a court cler
Sheriff Reyna testified that he had no evidence Plaintiff possessed any confidential
record and had no evidence that Plaintiff possessed anything with the knowledge
that it was obtained unlawfully. (Id.
On October 12, 2012, the Justice
of the Peace signed an arrest warrant for Plaintiff based on the three documents
provided. (Dkt. # 36-12.) Plaintiff was not immediately arrested.
Two years later, on June 21, 2014, Plaintiff arrived at the international
terminal in the Houston International Airport returning from a trip to Buenos Aires,
Argentina
Law enforcement boarded the plane and
arrested Plaintiff based on the Frio County warrant. (Id.
subsequently spent four days and three nights in a series of jails in the Houston
area. (Id.
District Attorney Robert Lipo of the 81st Judicial District declined to prosecute
Plaintiff because “[t]here is insufficient evidence to prosecute Mr. Smith for
tampering with a governmental record. Additionally, there were no factual
allegations in the complaint signed by Ms. Tullis that established probable cause to
issue an arrest warrant for Mr. Smith.” (Dkt. # 36-13.)
11
V.
The Instant Lawsuit
On June 15, 2015, Plaintiff filed this lawsuit against Clerk Tullis and
Sheriff Reyna. (Dkt. # 1.) On February 19, 2016, Plaintiff filed his First Amended
Complaint asserting four causes of action against each Defendant: (1) a violation
of his Fourth Amendment right to be free from unreasonable seizure absent
probable cause pursuant to 42. U.S.C. § 1983; (2) a violation of his Fourteenth
Amendment due process rights pursuant to 42 U.S.C. § 1983; (3) malicious
prosecution under Texas law; and (4) intentional infliction of emotional distress.
(Dkt. # 19.)
On August 10, 2016, Defendant filed a Motion for Summary
Judgment asserting the affirmative defense of qualified immunity. (Dkt. # 32.)
Plaintiff filed a Response (Dkt. # 36) and Defendants filed a Reply (Dkt. # 37.)
LEGAL STANDARD
A movant is entitled to summary judgment upon showing that “there
is no genuine dispute as to any material fact.” Fed. R. Civ. P. 56(a); see also
Meadaa v. K.A.P. Enters., L.L.C., 756 F.3d 875, 880 (5th Cir. 2014). A dispute is
only genuine “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, 248
(1986).
12
The moving party bears the initial burden of demonstrating the
absence of any genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S.
317, 323 (1986). If the moving party meets this burden, the nonmoving party must
come forward with specific facts that establish the existence of a genuine issue for
trial. Distribuidora Mari Jose, S.A. de C.V. v. Transmaritime, Inc., 738 F.3d 703,
706 (5th Cir. 2013) (quoting Allen v. Rapides Parish Sch. Bd., 204 F.3d 619, 621
(5th Cir. 2000)). “Where the record taken as a whole could not lead a rational trier
of fact to find for the non-moving party, there is no ‘genuine issue for trial.’”
Hillman v. Loga, 697 F.3d 299, 302 (5th Cir. 2012) (quoting Matsushita Elec.
Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986)).
In deciding whether a fact issue has been created, the court must draw
all reasonable inferences in favor of the nonmoving party, and it “may not make
credibility determinations or weigh the evidence.” Tiblier v. Dlabal, 743 F.3d
1004, 1007 (5th Cir. 2014) (quoting Reeves v. Sanderson Plumbing Prods., Inc.,
530 U.S. 133, 150 (2000)). However, “[u]nsubstantiated assertions, improbable
inferences, and unsupported speculation are not sufficient to defeat a motion for
summary judgment.” United States v. Renda Marine, Inc., 667 F.3d 651, 655 (5th
Cir. 2012) (quoting Brown v. City of Hous., 337 F.3d 539, 541 (5th Cir. 2003)).
13
DISCUSSION
The Court begins by noting that “[w]here 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.’” Cuadra v.
Hous. Indep. Sch. Dist., 626 F.3d 808, 814 (5th Cir. 2010) (citing Albright v.
Oliver, 510 U.S. 266, 273 (1994) (internal citations omitted)). In Albright, the
Supreme Court held that a plaintiff’s claims based on prosecution without probable
cause were best analyzed under the Fourth Amendment, as the “Framers [of the
Constitution] considered the matter of pretrial deprivations of liberty and drafted
the Fourth Amendment to address it.” 510 U.S. at 274. Accordingly, the Court
will only analyze Plaintiff’s claim through the Fourth Amendment and will not
address his Fourteenth Amendment claim.
I.
Qualified Immunity
“The doctrine of qualified immunity protects government officials
from liability for civil damages insofar as their conduct does not violate clearly
established statutory or constitutional rights of which a reasonable person would
have known. Qualified immunity gives government officials breathing room to
make reasonable but mistaken judgments, and protects all but the plainly
14
incompetent or those who knowingly violate the law.” Thompson v. Mercer, 762
Once a defendant raises qualified immunity as a defense, the burden
shifts to the plaintiff to show a violation of a clearly established constitutional
right. Harris v. Serpas, 745 F.3d 767, 771 (5th Cir. 2014). Accordingly, when a
defendant pleads qualified immunity as an affirmative defense and moves for
summary judgment, a court must decide: “(1) whether the undisputed facts and the
disputed facts, accepting the plaintiff’s version of the disputed facts as true,
constitute a violation of a constitutional right; and (2) whether the defendant’s
conduct was objectively reasonable in light of clearly established law.” Carroll v.
Ellington, 800 F.3d 154, 169 (5th Cir. 2015). A court may determine these
questions in any order. See Pearson v. Callahan, 555 U.S. 223, 236 (2009). As to
the second prong, a government official’s acts are not objectively unreasonable
unless all reasonable officials in the defendant’s circumstances would have then
known that the defendant’s conduct violated the plaintiff’s rights. Carroll, 800
F.3d at 169.
A.
Objective Reasonableness in Light of Clearly Established Law
As is the Court’s discretion, the Court begins by analyzing the second
prong of the qualified immunity analysis. Pearson, 555 U.S. at 236. “As a general
matter, it is beyond question that [a person] has a clearly established constitutional
15
right to be free from arrest absent an arrest warrant or probable cause.” Freeman v.
Gore, 483 F.3d 404, 411 (5th Cir. 2007).
1. Clerk Tullis’ Liability
In 2012, it was clearly established law that “[a] governmental official
violates the Fourth Amendment when he [or she] deliberately or recklessly
provides false, material information for use in an affidavit in support of a 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.” Hart, 127
F.3d at 449 (quoting St. Amant v. Thompson, 390 U.S. 727, 732 (1968));
Melton v. Phillips, --- F.3d ---, 2016 WL 4895989, at *2 (5th Cir. 2016). “Whether
a defendant in fact entertained serious doubts as to the truth is necessarily a fact
question.” Melton, 2016 WL 4895989 at *5.
16
The Court has no trouble in concluding that Clerk Tullis acted with
objective unreasonableness in light of this clearly established law because she
swore to false facts in reckless disregard of the truth. Clerk Tullis signed a
criminal complaint form under oath that she had “personal knowledge” that
Plaintiff unlawfully possessed Frio County OPRs and confidential juvenile and
birth records. (Dkt. # 36-4 at 9.) However, Clerk Tullis gave undisputed
testimony that she lacked such personal knowledge at the time she made this sworn
statement. For example, Clerk Tullis gave the following deposition testimony:
A: I have no idea what he stole.
Q: And you didn’t when you swore to the affidavit, right?
A: I don’t know what he stole.
...
Q: When you swore to the affidavit, you speculated as to what had
happened?
A: Yes. Because I didn’t know what he took.
Q. Right.
A. And I was scared. Yes.
(Tullis Dep. at 139:6 23.) This undisputed testimony establishes a genuine issue
of material fact that Clerk Tullis entertained serious doubts as to whether Plaintiff
unlawfully took any record from the Frio Clerk’s office, and thus swore to false
facts in reckless disregard to the truth. Indeed, Clerk Tullis has no personal
17
knowledge or proof that Plaintiff stole any record. Accordingly, Clerk Tullis is not
entitled to qualified immunity.
2. Sheriff Reyna
In 2012, it was clearly established that a police officer was not entitled
to absolute immunity for causing a plaintiff “to be unconstitutionally arrested by
presenting a judge with a complaint and a supporting affidavit which failed to
establish probable cause.” Malley v. Briggs, 475 U.S. 335, 337 (1986) (emphasis
in original). No party disputes that Sheriff Reyna presented the application for the
arrest warrant to the court clerk for the Justice of Peace to sign. Further, there is no
genuine dispute that the factual allegations in the warrant application fail to
establish probable cause. Indeed, the Assistant District Attorney responsible for
prosecuting the felony complaint against Plaintiff found that “there were no factual
allegations in the complaint signed by Ms. Tullis that established probable cause to
issue an arrest warrant for Mr. Smith.” (Dkt. # 36-13.) To the extent that Clerk
Tullis’ voluntary statement indicates that Plaintiff emailed Frio County documents
to himself, Sheriff Reyna has given undisputed testimony that at the time he
applied for a warrant there was no evidence that Plaintiff did so. (Reyna Dep. at
Accordingly, Sheriff Reyna is not entitled to absolute immunity.
Nevertheless, the Supreme Court made clear that a police officer may
be entitled to qualified immunity if he acted with objective reasonableness in
18
deciding to apply for a warrant. Malley,
an officer’s affidavit do not establish probable cause, then an “officer’s application
for a warrant [is] not objectively reasonable, because it create[s] the unnecessary
danger of an unlawful arrest.” Id. at 345. The Fifth Circuit has extended Malley
liability to “an officer, who is not the affiant [but] who actually prepares the
warrant application with knowledge that a warrant would be based solely on the
document prepared.” Michalik v. Hermann, 422 F.3d 252, 261 (5th Cir. 2005).
“Such an officer is in a position to see the whole picture, to understand his
responsibility, and thus fully assess probable cause questions.” Id. at 261.
In this case, Sheriff Reyna was the sole investigating officer of the
July 18, 2012 incident at the Frio Clerk’s
Sheriff Reyna testified that he prepared and delivered the entire warrant application
provided to the Justice of the Peace: (1) he populated the cover sheet for the
warrant application (id. at
approved the police narrative
describing the July 18, 2012 incident (Dkt. # 36-
; (3) he typed the
complaint form eventually signed by Clerk Tullis (Reyna Dep.
(4) he took the complaint form to Clerk Tullis for her signature (id.
;
);
and (5) delivered the warrant application to the court for the Justice of the Peace to
19
5
sign (id.
As mentioned above, there is no genuine dispute that
the factual allegations in the warrant application do not establish probable cause
that Plaintiff violated § 37.10. (Dkt. # 36-13.) Indeed, Sheriff Reyna testified that
at the time he prepared and submitted the warrant application he had no evidence
that Plaintiff possessed a Frio County record with knowledge that it was obtained
Reyna
was the only officer who saw the entire picture and could fully assess probable
cause. His undisputed testimony that he had no evidence that Plaintiff committed a
crime makes his decision to apply for a warrant application objectively
unreasonable.
Nor can Sherriff Reyna rely on the good faith exception for the
aforementioned reasons. The Supreme Court has held the same good faith
standard of “objective reasonableness” defines the qualified immunity accorded an
officer whose request for a warrant allegedly caused an unconstitutional arrest.”
Malley, 475 U.S. at 344. “Only where the warrant application is so lacking in
indicia of probable cause as to render the official belief in its existence
unreasonable, will the shield of immunity be lost.” Id.
United
States v. Leon, 468 U.S. 897, 923 (1984). Here, that is the case and more—Sheriff
5
The only part of the warrant application that Sheriff Reyna did not prepare is a
photocopy of the Tex. Penal Code § 37.10, and the hand-written statement by
Clerk Tullis. (Dkt. # 36-4.)
20
Reyna actually testified that he lacked probable cause, but elected to apply for a
warrant nonetheless. Accordingly, Sheriff Reyna is denied qualified immunity.
II.
Independent Intermediary Doctrine
Defendants contend that despite their actions, the independent
intermediary doctrine precludes their liability. Under the independent intermediary
doctrine, “even an officer who acted with malice in procuring the warrant . . . will
not be liable if the facts supporting the warrant . . . are put before an impartial
intermediary such as a magistrate or a grand jury, for that intermediary’s
‘independent’ decision ‘breaks the causal chain’ and insulates the initiating party.”
Melton, 2016 WL 4895989 at *5 (quoting 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
A.
Justice of the Peace as Independent Intermediary
Defendants argue that the Justice of the Peace’s decision to issue the
arrest warrant breaks the chain of causation between their actions and the alleged
21
constitutional violation. Defendants’ argument misses the mark. For example, in
Melton, the Fifth Circuit held that a judge’s issuance of an arrest warrant did not
break the causal chain because the police officer-defendant “misrepresented the
facts, intentionally or recklessly, by falsely identifying the plaintiff as the
suspected assailant and thus tainted the county judge’s decision.” 2016 WL
4895989 at *5. Likewise, a genuine issue of material fact exists as to whether
Clerk Tullis recklessly misrepresented the fact that she had personal knowledge
that Plaintiff did in fact intentionally possess a government record with knowledge
3.) Sheriff Reyna was
complicit in this because he presented a warrant application with facts he knew
finds that the independent intermediary doctrine is inapplicable because the Justice
of the Peace’s decision was tainted by these factual misrepresentations.
B. Frio County Attorney as Independent Intermediary
Defendants also argue that Frio County Attorney Lozano serves as an
independent intermediary because he reviewed the criminal investigation and
concluded that probable cause existed. 6 (Dkt. # 32-4.) Whether a county attorney
6
Lozano is not a defendant to this action, but it is noteworthy that the factual
allegations he lists to support his probable cause determination were likely made
with reckless disregard to the truth. For example, he states that Plaintiff was on an
“unauthorized site,” yet no evidence exists of what site he accessed and whether it
was unauthorized. He states that Plaintiff used a flash drive, but Sheriff Reyna
22
in Texas can serve as an independent intermediary for a finding of probable cause
on a felony charge seems to be a matter of first impression in the Fifth Circuit.
Under Texas law, county and district attorneys have separate and
distinct authorities and responsibilities. A county attorney represents his county
and the state in courts “below the grade of district court.” Tex. Code Crim. Proc.
art. 2.02. The court below a district court is the county court, and a county court
has “exclusive original jurisdiction of misdemeanors.” Tex. Gov’t Code
§ 26.045(a). A county attorney may only aid a district attorney in district court
“when requested.” Tex. Code Crim. Proc. art. 2.02. Accordingly, a county
attorney may only bring misdemeanor charges.
In contrast, a district attorney represents the state “in all criminal
cases in the district courts of his district.” Id. art. 2.01. District courts have
original jurisdiction in felony grade criminal cases. Id. art. 4.05. Accordingly,
district attorneys have authority to bring felony charges. In this case, Frio County
is one of five counties that fall within the 81st Judicial District of Texas. Tex.
Gov’t Code § 24.183. Accordingly, any felony criminal conduct in Frio County
may only be initiated by the district attorney for the 81st Judicial District.
testified that he had no evidence that a flash drive was used. (Reyna Dep. at
tealing records in his letter to
the Texas Attorney General. In that letter, Plaintiff stated that he searched an
index of public records, and saved a couple indices of public records to the
desktop. No rational jury would conclude that Plaintiff’s statements constitute an
admission of theft.
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The Fifth Circuit has held that a district attorney may qualify as an
independent intermediary. Cuadra, 626 F.3d at 812. In Cuadra, a school official
removed names from an official school record that tracked student drop-out data.
Id. at 810. The district attorney sought and obtained a grand jury indictment
charging that defendant with a third degree felony for making a false alteration to a
government record. Id. at 811; Tex. Penal Code § 37.10(c)(2). The district
attorney eventually dropped the charges and the defendant filed a 42 U.S.C. § 1983
claim asserting a violation of his Fourth Amendment rights from a wrongful arrest.
The Fifth Circuit held that “both [the district attorney] and the . . . grand juries
qualified as independent intermediaries.” Id. at 813.
The Court finds that sufficient reasons exist to not extend Cuadra to
qualify a county attorney as an independent intermediary for findings of probable
cause of felony conduct. First, the county attorney has attested that he reviews
“criminal investigations conducted by law enforcement officers and determine[s] if
there is probable cause to go forward with a criminal complaint and prosecution of
the criminal case.” (Dkt. # 32-4 at 2.) In Cuadra, the district attorney had statutory
authority to seek an indictment for the felony offense. Here, that is not the case.
While the county attorney may very well fulfill this role informally, there is no
statutory basis for a county attorney to prosecute a felony complaint like the one
charging Plaintiff under Texas Penal Code § 37.10. Instead, a county attorney
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represents the state on misdemeanor charges in courts below the district court.
Accordingly, since a county attorney cannot seek or prosecute felonious conduct, it
follows that a county attorney cannot serve as an intermediary like a district
attorney can for felony charges. Indeed, the prosecuting district attorney in this
case found that probable cause did not exist that Plaintiff committed a crime. (Dkt.
# 36-13.)
Second, the county attorney states that he is “the legal advisor for the
Frio County Officials.” (Id.) Defendants in this case are Frio County officials, and
by admitting that he is their legal advisor, his decisions become insufficiently
independent and impartial to qualify him as an independent intermediary. By
providing legal advice to these officials in the performance of their official duties,
the county attorney’s attorney-client role creates a conflict of interest whereby any
probable cause determination for a felony charge made by a county attorney is not
sufficiently autonomous from the public official’s unconstitutional conduct.
Accordingly, the county attorney does not qualify as an independent intermediary
where he finds probable cause that felonious conduct occurred.
III.
State Law Claims
Plaintiff has also asserted common law claims for malicious
prosecution and intentional infliction of emotional distress. (Dkt. # 19 ¶¶
Section 101.106(f) of the Texas Tort Claims Act provides in pertinent part:
25
(f) If a suit is filed against an employee of a governmental unit based on
conduct within the general scope of that employee’s employment and if it
could have been brought under this chapter against the governmental unit,
the suit is considered to be against the employee in the employee’s official
capacity only.
Tex. Civ. Prac. & Rem. Code § 101.106(f). Thus, a defendant is entitled to
dismissal under section 101.106(f) upon proof that the plaintiff’s suit (1) was based
on conduct within the scope of the defendant’s employment with a governmental
unit, and (2) could have been brought against the governmental unit under the Tort
Claims Act. Anderson v. Bessman, 365 S.W.3d 119, 124 (Tex. App. 2011). The
statute strongly favors dismissal of governmental employees. Waxahachie Indep.
Sch. Dist. v. Johnson, 181 S.W.3d 781, 785 (Tex. App. 2005). Indeed, the Texas
Supreme Court has held that Section 101.106 “foreclose[s] suit against a
government employee in his individual capacity if he was acting within the scope
of employment.” Franka v. Velasquez, 332 S.W.3d 367, 381 (Tex. 2011).
Plaintiff concedes that he has brought his claims against Defendants in their
individual capacities. (Dkt. # 36 at 20.) Plaintiff also offers no evidence that
Defendants were acting outside the scope of their official duties. As such, these
claims could have been brought against them in their official capacities.
Accordingly, Plaintiff may not bring these claims against Defendants in their
individual capacities. These claims will be dismissed with prejudice.
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CONCLUSION
For the reasons explained above, the Court GRANTS IN PART and
DENIES IN PART Defendants’ Motion for Summary Judgment (Dkt. # 32). The
Court DENIES Defendants’ qualified immunity and DISMISSES WITH
PREJUDICE all state law claims.
IT IS SO ORDERED
DATE: San Antonio, Texas, November 8, 2016.
_____________________________________
DAVID ALAN EZRA
UNITED STATES DISTRICT JUDGE
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