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In the United States District Court Northern District of Texas Dallas Division

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In the United States District Court Northern District of Texas Dallas Division Case 3:12-cv-00457-N-BN Document 84 Filed 10/10/13 Page 1 of 15 PageID 448 IN THE UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF TEXAS DALLAS DIVISION TERRY R. JAMES, § § Plaintiff, § § V. § No. 3:12-cv-457-N-BN § DALLAS POLICE DEPARTMENT, § ET AL., § § Defendants. § FINDINGS, CONCLUSIONS, AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE This case has been referred to the undersigned United States magistrate judge for pretrial management pursuant to 28 U.S.C. § 636(b) and a standing order of reference from the District Court. See Dkt. No. 30. The undersigned magistrate judge issues the following findings of fact, conclusions of law, and recommendation on Defendants’ Joint Motion for Summary Judgment [Dkt. No. 63]. Defendants’ motion for summary judgment should be granted. Background The extensive procedural history of this case has been set forth a number of times and is well known to the parties. On February 13, 2012, Plaintiff Terry R. James, proceeding pro se, filed this civil rights action alleging that the City of Dallas, Dallas County, the Dallas County District Attorney’s Office, District Attorney Craig Watkins, Police Chief David Brown, and three Dallas Police officers are responsible for his false arrest, invasion of his privacy, and malicious prosecution. -1- Case 3:12-cv-00457-N-BN Document 84 Filed 10/10/13 Page 2 of 15 PageID 449 The Court initially summarily dismissed Plaintiff’s claims pursuant to 28 U.S.C. § 1915(e)(2), finding that Plaintiff had failed to state a claim for relief against the Dallas Police Department, Chief Brown, and the Dallas County District Attorney’s Office. See James v. Dallas Police Dep’t, No. 3:12-cv-457-N, 2012 WL 1066383, at *2 (N.D. Tex. Mar. 1, 2012), rec. adopted, 2012 WL 1066020 (N.D. Tex. Mar. 29, 2012). The Court also dismissed Plaintiff’s wrongful arrest claims because, even crediting Plaintiff’s allegations as true, probable cause existed for his arrest. See James, 2012 WL 1066383, at *2. The United States Court of Appeals for the Fifth Circuit vacated the dismissal, determining that Plaintiff’s wrongful arrest claim should not have been summarily dismissed, and remanded the case. See James v. Dallas Police Dep’t, No. 12- 10369, 2012 WL 5911132, at *1 (5th Cir. Nov. 26, 2012). Plaintiff filed an amended complaint, see Dkt. No. 27, and the Court summarily dismissed, pursuant to 28 U.S.C. § 1915(e)(2), Plaintiff’s claims against Chief Brown, District Attorney Watkins, the City of Dallas, and Dallas County and his allegations of malicious prosecution and invasion of privacy. See Dkt. Nos. 33 & 36. However, the Court permitted Plaintiff to proceed on his false arrest claims against Defendants Schafer, Zamarripa, and Roberts. See id. Plaintiff’s appeal of this order was dismissed for want of prosecution. See Dkt. No. 50; James v. Dallas Police Dep’t, No. 13-10196 (5th Cir. Apr. 5, 2013). The remaining defendants now jointly move for summary judgment. See Dkt. No. 63. They allege that all claims that they violated the Fourth Amendment are barred by qualified immunity and that Officer Schafer did not participate in the -2- Case 3:12-cv-00457-N-BN Document 84 Filed 10/10/13 Page 3 of 15 PageID 450 Plaintiff’s arrest. See Dkt. Nos. 63 & 64. After the Court permitted limited discovery on the issue of qualified immunity, see Dkt. No. 71, Plaintiff filed a response to Defendants’ motion, see Dkt. No. 80, and Defendants submitted a reply brief, see Dkt. No. 83.1 According to his first amended complaint and summary judgment response, on December 19, 2010, Plaintiff called 911 to report that his mistress was refusing to leave his home and threatened to make a false statement to the police. See Dkt. No. 11 at Question 4; Dkt. No. 81 at 5; see also Dkt. No. 27 at 1. Dallas Police Officers Patricio Zamarripa and John Roberts were dispatched to Plaintiff’s home. See id. Plaintiff invited Officer Zamarripa inside the home, while Officer Roberts escorted the complainant outside for questioning. See id.; accord Dkt. No. 65-1 at 1 & 3. According to Officer Roberts, the woman told him that she was Plaintiff’s common-law wife and that Plaintiff “had choked her and then threw her into a wall ...[,] that the choking lasted about 15 seconds, caused her pain, and continued until she was no longer able to breathe or swallow, after which [Plaintiff] threw her into a wall.” Dkt. No. 65-1 at 1. Both Officer Roberts and Officer Zamarripa state that the woman’s voice was shaking, she had watery eyes, and her appearance and demeanor were consistent with 1 Defendants filed a supplemental response to attach signed and notarized verifications to their responses to Plaintiff’s interrogatories. See Dkt. No. 77. Plaintiff objects to the filing of this supplemental response without leave and asserts that it should be struck. See Dkt. No. 79. Defendants’ supplemental filing on August 9, 2013 was ordered by the Court in its July 10, 2013 Order. See Dkt. No. 71. Plaintiff’s objections [Dkt. No. 79] that the supplemental filings contravene the Court’s orders are meritless and are OVERRULED. -3- Case 3:12-cv-00457-N-BN Document 84 Filed 10/10/13 Page 4 of 15 PageID 451 that of a person who had been strangled. See id. at 1 & 3. Plaintiff alleges that he told the officers that he had done nothing wrong, that the woman was lying, and pleaded with the officers to remove the woman – who was not his common-law wife – from his house. See Dkt. No. 11 at Question 4; Dkt. No. 81 at 5-6; see also Dkt. No. 27 at 1-2. Despite his protests, Plaintiff was placed under arrest for the offense of assault by strangulation. See Dkt. No. 65-1 at 1 & 4; Dkt. No. 81 at 6; see also Dkt. No. 27 at 2. It does not appear that Plaintiff alleges that he was detained between consenting to the officers’ entry and his eventual arrest. See Dkt. No. 27 at 1-2; accord Dkt. No. 81 at 5-6. Officer Paul Schafer, who did not have a role in the arrest, processed the paperwork and submitted an affidavit for arrest warrant to a Dallas County magistrate judge for the enhanced offense of felony assault by strangulation. See Dkt. No. 65-1 at 5-6. Plaintiff claims that Officer Schafer is responsible for “dereliction of duty” for his failure to “make sure the arrest information complied with the elements of the charge” and for his improper attempt to bring an enhanced charge based upon an invalid and non-final conviction. Dkt. No. 80 at 8-9. Plaintiff was indicted by a Dallas County grand jury for felony assault-family violence, but the charge was dismissed by a state judge on December 12, 2011. See Dkt. No. 11 at Questions 4, 5, & 6, Dkt. No. 32 at 4; see also Dkt. No. 27 at 3. Legal Standards Under Fed. R. Civ. P. 56, summary judgment is proper “if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to -4- Case 3:12-cv-00457-N-BN Document 84 Filed 10/10/13 Page 5 of 15 PageID 452 judgment as a matter of law.” FED. R. CIV. P. 56(a). A factual “issue is material if its resolution could affect the outcome of the action.” Weeks Marine, Inc. v. Fireman’s Fund Ins. Co., 340 F.3d 233, 235 (5th Cir. 2003). “A factual dispute is ‘genuine,’ if the evidence is such that a reasonable [trier of fact] could return a verdict for the nonmoving party.” Crowe v. Henry, 115 F.3d 294, 296 (5th Cir. 1997). If the moving party seeks summary judgment as to his opponent’s claims or defenses, “[t]he moving party bears the initial burden of identifying those portions of the pleadings and discovery in the record that it believes demonstrate the absence of a genuine issue of material fact, but is not required to negate elements of the nonmoving party’s case.” Lynch Props., Inc. v. Potomac Ins. Co., 140 F.3d 622, 625 (5th Cir. 1998). “Once the moving party meets this burden, the nonmoving party must set forth” – and submit evidence of – “specific facts showing a genuine issue for trial and not rest upon the allegations or denials contained in its pleadings.” Id.; Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994) (en banc). The Court is required to view all facts and draw all reasonable inferences in the light most favorable to the nonmoving party and resolve all disputed factual controversies in favor of the nonmoving party – but only if both parties have introduced evidence showing that an actual controversy exists. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986); Boudreaux v. Swift Transp. Co., Inc., 402 F.3d 536, 540 (5th Cir. 2005); Lynch Props., 140 F.3d at 625. “Unsubstantiated assertions, improbable inferences, and unsupported speculation are not sufficient to defeat a motion for summary judgment,” Brown v. City of Houston, 337 F.3d 539, 541 (5th Cir. -5- Case 3:12-cv-00457-N-BN Document 84 Filed 10/10/13 Page 6 of 15 PageID 453 2003), and neither will “only a scintilla of evidence” meet the nonmovant’s burden, Little, 37 F.3d at 1075. Rather, the non-moving party must “set forth specific facts showing the existence of a ‘genuine’ issue concerning every essential component of its case.” Morris v.
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