Opinion
CIVIL ACTION NO. 3:96-CV-3129-G.
September 13, 2000.
MEMORANDUM ORDER
By order of August 30, 2000, this case was reassigned to the undersigned judge. After conducting a thorough review of the record in this case, the court — on its own motion — concludes that the order denying summary judgment, entered August 3, 1999, should be reconsidered and that, upon reconsideration, the defendant's motion for summary judgment should be granted. A statement of reasons follows.
Reconsideration is appropriate because the order denying the motion for summary judgment, entered August 3, 1999 ("the August 3 order"), is interlocutory. Enplanar, Inc. v. Marsh, 11 F.3d 1284, 1291 n. 7 (5th Cir.) (denial of motion for summary judgment not a final order and thus not immediately appealable), cert. denied, 513 U.S. 926 (1994); In re Corrugated Container Antitrust Litigation, 694 F.2d 1041, 1042-43 (5th Cir. 1983) (same). As such, it is subject to modification by this court at any time. See Rule 54(b), F.R.Civ.P. ("any order or other form of decision, however designated, which adjudicates fewer than all the claims or the rights and liabilities of fewer than all the parties shall not terminate the action as to any of the claims or parties, and the order or other form of decision is subject to revision at any time before the entry of judgment adjudicating all the claims and the rights and liabilities of all the parties."); Zimzores v. Veterans Administration, 778 F.2d 264, 266 (5th Cir. 1985) (summary judgment in favor of the plaintiff only on the issue of liability was "plainly interlocutory" and therefore "subject to being revised, modified or vacated by the trial court."); Premier Industrial Corporation v. McGuire, 423 F.2d 1198, 1199 (5th Cir. 1970) (grant of partial summary judgment not final and subject to reconsideration by district court); Bache Co., Inc. v. Taylor, 458 F.2d 395, 395-96 (5th Cir. 1972) (same for default judgment on issue of liability only).
This court's power to grant reconsideration is unaffected by the defendant's unsuccessful appeal of the August 3 order. The Court of Appeals held only that it lacked jurisdiction to review the August 3 order. See Gregory Walker v. Susan Harris, No. 99-11003 (5th Cir. June 15, 2000), slip op. at 1-2 (unpublished).
I. BACKGROUND
In his pro se complaint, filed November 19, 1996, Walker stated his claim as follows:
I was arrested on June 10-1996. Taken from my apartment. My apartment was searched which I lost along with everything in it. I suffered for about 4 months for a crime I did not do. I didn't even fit the description of the suspect, but was arrested anyway. . . . Mrs. Susan Harris, is the officer who say's that I sold her drugs personally. And responsible for my arrest.
Complaint ¶ IV.
Walker elaborated on Harris's role in answer to questions propounded by the magistrate judge:
Officer Harris was supposible [sic] the officer working in a[n] undercover capacity — the one who made the warrant out — she knew this person who she did come in contact with, and the description of said person. (negligent) I didn't fit the description physically or materially. At the point of arrest she knowing it wasn't me could have spoke then, but to no avail. (deliberate)-(intentional).
Answer to Question No. 10, Magistrate Judge's Questionnaire to Plaintiff, filed February 13, 1998 (emphasis in original).
He provided additional details in the joint status report required by the order of July 2, 1998:
On June 10, 1996, Officer Harris obtained a warrant describing a man who sold her drugs. Walker was approached at his apartment by two plain suits officers with the warrant, who stoped [sic] Walker and agreed that warrant didn't fit his description. However, Officer Harris insisted that even though Walker didn't fit description on warrant he was to be taken anyway. The trial proved that the warrant didn't fit Walker. Harris testified that a white male sold drugs to her in trial. I was acquitted of all charges.
Joint Status Report, filed July 30, 1998 ¶ 1.
He gave further particulars in response to the August 11, 1998 order requiring a Rule 7 reply to Harris's defense of qualified immunity:
Officer Harris, in her under cover capacity, did affect [sic] an arrest on the plaintiff, alledging [sic] that probable cause existed. This arrest was supported by an arrest warrant, in which Officer Harris obtained minutes after the alledged [sic] offense took place. She claims that I the plaintiff did sell a controlled substance to her personally. However the warrant obtained by this officer failed to fit the description of me the plaintiff. The supposed probable cause was not proven on October 2, 1996 at trial. Neither did the warrant prove to be descriptive of me the plaintiff. I was acquitted of all charges on 10/3/1996 and released from all charges immediately.
Walker's Rule 7 Reply/Response, filed August 27, 1998.
The court thus construes Walker to be asserting claims of false arrest and malicious prosecution against Harris, a Dallas police officer. See, e.g., Memorandum Order of April 16, 1998; Order of April 8, 1998; Letter from Walker filed February 5, 1998 ("Due to this false arrest. . . .").
II. ANALYSIS A. Summary Judgment Standard
Summary judgment is proper when the pleadings and evidence on file show that no genuine issue exists as to any material fact and that the moving party is entitled to judgment as a matter of law. F.R. Civ.P. 56(c). "[T]he substantive law will identify which facts are material." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A genuine issue of material fact exists "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Id.
The disposition of a case through summary judgment "reinforces the purpose of the Rules, to achieve the just, speedy, and inexpensive determination of actions, and, when appropriate, affords a merciful end to litigation that would otherwise be lengthy and expensive." Fontenot v. Upjohn Company, 780 F.2d 1190, 1197 (5th Cir. 1986).
A movant for summary judgment makes such a showing by informing the court of the basis of her motion and by identifying the portions of the record which reveal there are no genuine issues of material fact. See Celotex Corporation v. Catrett, 477 U.S. 317, 323 (1986). The pleadings, depositions, admissions, and affidavits, if any, must demonstrate that no genuine issue of material fact exists. F.R. Civ.P. 56(c).
Once the movant makes this showing, the nonmovant may not rest on the allegations in his pleadings. See Isquith for and on behalf of Isquith v. Middle South Utilities, Inc., 847 F.2d 186, 199 (5th Cir.), cert. denied, 488 U.S. 926 (1988). Rather, he must direct the court's attention to evidence in the record sufficient to establish that there is a genuine issue of material fact for trial. See Celotex, 477 U.S. at 324. To carry this burden, the "opponent must do more than simply show . . . some metaphysical doubt as to the material facts." Matsushita Electric Industrial Co., Ltd. v. Zenith Radio Corporation, 475 U.S. 574, 586 (1986). Instead, the nonmovant must present evidence sufficient to support a resolution of the factual issue in his favor. See Anderson, 477 U.S. at 257.
While all of the evidence must be viewed in a light most favorable to Walker as the motion's opponent, Anderson, 477 U.S. at 255 (citing Adickes v. S.H. Kress Company, 398 U.S. 144, 158-59 (1970)), neither conclusory allegations nor unsubstantiated assertions will satisfy his summary judgment burden. Little v. Liquid Air Corporation, 37 F.3d 1069, 1075 (5th Cir. 1994) (en banc); Topalian v. Ehrman, 954 F.2d 1125, 1131 (5th Cir.), cert. denied, 506 U.S. 825 (1992). Summary judgment in favor of Harris is proper if, after adequate time for discovery, Walker fails to make a showing that there is evidence in the record which, if believed by a jury, would support a verdict in his favor.
B. Oualified Immunity
As a threshold matter, the court must determine whether (1) Walker has alleged a constitutional violation; (2) the law regarding the alleged violation was clearly established at the time of the operative events; and (3) the record shows that a violation occurred, or at least gives rise to "a genuine issue of material fact as to whether the defendant actually engaged in conduct that violated the clearly established law." Kerr v. Lyford, 171 F.3d 330, 339 (5th Cir. 1999) (quoting Rich v. Dollar, 841 F.2d 1558, 1563 (11th Cir. 1988)). Concluding that the first two of these elements are satisfied, see Kerr, 171 F.3d at 339 (malicious prosecution); Eugene v. Alief Independent District, 65 F.3d 1299, 1305 (5th Cir. 1995) (malicious prosecution and false arrest), cert. denied, 517 U.S. 1191 (1996), the court will proceed to the third and final threshold question: "whether the showings made by the parties create a genuine issue of material fact as to whether the defendant actually engaged in conduct that violated the clearly-established law." Kerr, 171 F.3d at 339-40 (quoting Rich, 841 F.2d at 1563). "That is, ha[s Walker] satisfied the prima facie elements of [his] claims?" Kerr, 171 F.3d at 340.
On the present record, the answer is clearly no. First, as to false arrest, Harris testified by affidavit (and Walker effectively conceded) that Harris was not the arresting officer. Thus, she can have no liability under § 1983 for false arrest. Sappington v. Bartee, 195 F.3d 234, 237 (5th Cir. 1999). Nor can Harris be liable under § 1983 for negligently furnishing incorrect information that resulted in Walker's arrest. Campbell v. City of San Antonio, 43 F.3d 973, 976-77 (5th Cir. 1995); Rodriguez v. Ritchey, 556 F.2d 1185, 1193 (5th Cir. 1977) (en banc), cert. denied, 434 U.S. 1047 (1978). Finally, there is no evidence that Walker was arrested without probable cause. "There is no cause of action for false arrest under § 1983 unless the arresting officer lacked probable cause." Brown v. Bryan County, OK, 67 F.3d 1174, 1180 (5th Cir. 1995) (citing Fields v. City of South Houston, Tex., 922 F.2d 1183, 1189 (5th Cir. 1991)), vacated on other grounds, 520 U.S. 397 (1997).
See Affidavit of Susan Harris, located in Appendix to Defendant's Motion for Summary Judgment, at 2 ("When I returned to the car [following the drug transaction], my partner and I called for patrol officers in the area to come and arrest Weaver and Walker for delivery of a controlled substance."); Affidavit of Gregory Walker, filed February 2, 1999, at I ("I was approached by two officers, while exiting the apartments where I lived. I was questioned concerning activity of a drug transaction, in which I had no knowledge. . . . After being searched I was then handcuffed and brought to jail. . . . I never saw Officer Harris until Oct. 1996 at the trial.").
The record contains a judgment of acquittal submitted by Walker to satisfy this court's concerns under Heck v. Humphrey, 512 U.S. 477 (1994). See Memorandum Order of April 16, 1998; Letter from Walker, filed May 11, 1998, with copy of judgment of acquittal attached. That judgment reflects that Walker was indicted by a grand jury for the crime for which he was arrested. A grand jury indictment conclusively determines the existence of probable cause. Campbell v. City of San Antonio, 43 F.3d 973, 976 (5th Cir. 1995) (citing Gerstein v. Pugh, 420 U.S. 103, 117 n. 19 (1975)). "It is well settled that if facts supporting an arrest are placed before an independent intermediary such as a magistrate or grand jury, the intermediary's decision breaks the chain of causation for false arrest, insulating the initiating party." Taylor v. Gregg, 36 F.3d 453, 456 (5th Cir. 1994). This is true even though the arrest precedes the grand jury's determination of probable cause. See id. at 454-57.
The fact that Walker was indicted by a grand jury is also fatal to his claim for malicious prosecution which, like false arrest, requires an absence of probable cause. See, e.g., Goodson v. City of Corpus Christi, 202 F.3d 730, 740-41 (5th Cir. 2000) (that "the defendants acted without probable cause" is an element of malicious prosecution claim under § 1983); Brown v. Nationsbank Corporation, 188 F.3d 579, 586 (5th Cir. 1999) ("absence of probable cause for the proceedings" is an element of malicious prosecution claim under Texas law), cert. denied, ___ U.S. ___, 120 S.Ct. 2740 (2000). Moreover, Walker has not even alleged, much less submitted summary judgment evidence to prove, malice on the part of Harris. Cf. Rodriguez, 556 F.2d at 1189 n. 10 ("The complaint of Ms. Rodriguez spoke only of `errors' made by the defendants and `negligent police conduct.' Her attorney readily conceded . . . that the defendants did not act with malice aforethought. He argued instead that simple negligence alone would suffice to state a claim.").
Walker's failure of proof on these elements of his claims renders all other facts immaterial. Celotex, 477 U.S. at 322-23.
III. CONCLUSION
Walker claims that Harris violated his federal constitutional rights by causing him to be arrested on a drug charge, even though he immediately protested his innocence and was later acquitted at trial. That is the sum and substance of this case. Although there is some intuitive appeal in Walker's apparent notion that arresting an innocent person should trigger constitutional remedies, the law has not evolved in so simplistic a fashion. Since arrest is authorized on a lower quantum of proof ("probable cause") than conviction ("beyond a reasonable doubt"), it sometimes happens that a person who has been arrested (because the evidence satisfied the lower threshold of "probable cause") is later acquitted at trial (because the evidence failed to satisfy the higher threshold of "beyond a reasonable doubt"). Unless more is shown, however, this does not mean that the arrestee's constitutional rights have been violated, for the Supreme Court has observed:
The Constitution does not guarantee that only the guilty will be arrested. If it did, § 1983 would provide a cause of action for every defendant acquitted — indeed, for every suspect released.Baker v. McCollan, 443 U.S. 137, 145 (1979). Here, the record reveals only that Walker was arrested (on the basis of Harris's identification) and subsequently acquitted. These facts, standing alone, do not make out a triable issue for violation of Walker's constitutional rights.
The defendant's motion for summary judgment is GRANTED. Judgment will be entered that Walker take nothing on his claims against Harris. SO ORDERED.
After this case was reassigned to the undersigned, Walker filed a motion for leave to join additional persons as defendants. See Motion for Leave to Join Parties as Defendants in Plaintiff's Claim, filed September 6, 2000. By virtue of this motion, Walker seeks to join as defendants the City of Dallas Police Department and the officers who arrested him. Differing versions of this motion have been filed throughout the history of this case. See Joinder of Parties to Claim, filed October 15, 1998; Motion for Permissive Joinder of Parties, filed November 12, 1998; Motion of Joinder of Parties, filed December 1, 1998; Letter Motion to Join City of Dallas Police Department as Defendant, filed April 9, 1999; Motion for Leave to Join Parties, filed August 30, 1999. These motions have all been denied. See Order Concerning Plaintiff's Joinder of Parties, filed October 30, 1998 (in which Judge Maloney of this court explained to Walker the proper procedure to name and serve additional defendants); Order Concerning Plaintiff's Motions for Joinder of Parties and Motions for Summary Judgment, filed November 30, 1998 (same); Order Denying Plaintiff's Motion for Joinder of Parties, filed January 26, 1999 (same); Order Denying Motion for Leave to Join Parties, filed September 13, 1999.
The instant motion is DENIED for the same reasons given in Judge Maloney's orders. And even if this motion should be construed as a motion for leave to amend under Rule 15(a), F.R. Civ. P., it must be DENIED, as limitations would bar any claim against additional defendants at this late date.