## NO. 12

- 12

- 00107

- CV

IN THE COURT OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT

TYLER, TEXAS

JOHN FLOWERS

, § APPEAL FROM THE 159TH APPELLANT

V. § JUDICIAL DISTRICT COURT
CITY OF DIBOLL, TEXA S, STEVE BAKER AND KENT HAVAR D, APPELLEES § ANGELINA COUNTY, TEXAS

MEMORANDUM OPINION John Flowers appeals from take nothing summary judgments in favor of the City of Diboll, Steve Baker, and Kent Havard, alleging that the tria l court improperly granted the

m otions. We affi rm.

B ACKGROUND John Flowers and Stephanie Cook have a child together. Stephanie Cook has a brother named Steven Cook, and the r elationship between Flowers and Steven is not a good one . In
2006 , there was litigation regarding child custody arrangements

. Flowers‘s allegations about Steven were part of the litigation, and Flowers was ultimately awarded primary custody of the
child. On May 9, 2006, Flowers was leaving a baseball game with his wife and children when
Steven drove his truck alongside Flowe rs‘s truck. The two trucks collided and then separated. The police were called
, and City of Diboll police officer Steve Baker conducted an investigation. Ultimately, Baker obtained an arrest warrant for Flowers for the misdemeanor offense of deadly
cond uct. Flowers was arrested, but he was never charged with the offense. Flowers sued Baker,
the C ity of Diboll, and Kent Havard, the chief of police, for false arrest and other torts . The2

defendants filed traditional and no evidence motions for summary ju dgment after discovery.
Flowers dismissed his state law claims and elected to proceed solely on his Section 1983 federal civil rights violation cause of action. The trial court granted the defendants ‘ motions for summary judgment, and this appeal followe d.

S UMMARY J UDGMENT In three issues, Flowers argues that the trial court erred in granting summary judgment
because a fact issue existed as to whether the actions of the officer and of the police chief were

reason able, because the issuance of a warrant di d not break a causality chain
, and because a fact
issue existed as to whether the C ity was liable for a lack of training.
Standard of Review
We review the trial court ‘ s decision to grant summary judgment de novo. Tex. Mun. Power Agency v. Pub. Util. Comm ’ n , 253 S.W.3d 184, 192 (Tex. 2007). A defendant who
moves for a traditional summary judgment has the burden of showing that there is no genuine issue of material fact concerning one or more essential elements of the plaintiff ‘ s claims and that
it is enti tled to judgment as a matter of law. T EX

. R. C IV

. P. 166a(c); Nixon v. Mr. Prop. Mgmt.
Co. , 690 S.W.2d 546, 548 (Tex. 1985). Once the movant has established a right to summary judgment, the nonmovant has the burden to respond to the motion and present to the trial court any issues that would preclude summary judgment. See City of Houston v. Clear Creek Basin
Auth. , 589 S.W.2d 671, 678

- 79 (Tex. 1979). A no evidence summary judgment motion under Rule 166a(i) is essentially a motion for a pretrial directe d verdict, which may be supported by evidence. Timpte Indus., Inc. v. Gish , 286 S.W.3d 306, 310 (Tex. 2009). A party may move for a no evidence summary judgment on the ground that no evidence exists of one or more essential elements of a claim on which t he adverse party bears the burden of proof. Martinez v. Hays Constr., Inc. , 355 S.W.3d 170, 177 (Tex. App.

– Houston [1st Dist.] 2011, no pet.). A trial court must grant a no evidence motion for summary judgment unless the nonmovant produces more than a sc intilla of probative evidence to raise a genuine issue of material fact. T EX

. R. C IV

. P. 166a(i); Wal

- Mart Stores, Inc. v. Rodriguez , 92 S.W.3d 502, 506 (Tex. 2002). More than a scintilla of evidence exists if the
evidence rises to a level that would ena ble reasonable and fair

- minded people to differ in their
conclusions. King Ranch, Inc. v. Chapman , 118 S.W.3d 742, 751 (Tex. 2003). Less than a3

scintilla of evidence exists when the evidence is so weak as to merely create a s urmise or suspicion of a fact

. Id

. Review of a summary judgment under either a traditional standard or no evidence standard requires that the evidence presented by both the motion and the response be viewed in the light most favorable to the party against whom the motion was rendered , crediting evidence favorable to that party if reasonable jurors could
, and disregarding all contrary evidence and inferences unless reasonable jurors could not. Gish , 286 S.W.3d at 310; Wal

- Mart Stores, Inc.
, 92 S.W.3d at 506. In reviewing a summary ju dgment, we consider all grounds ruled on by the trial court and preserved for appellate review that are necessary for final disposition of the appeal. Diversicare Gen. Partner, Inc. v. Rubio , 185 S.W.3d 842, 846 (Tex. 2005); Cincinnati Life Ins. Co. v. Ca tes , 927 S.W.2d 623, 626 (Tex. 1996). Analysis Section 1983 provides a cause of action for the deprivation, under color of law, of a
citizen ‘ s ―  ̳ rights, privileges, or immunities secured by the Constitution and laws ‘ of the United States[.] ‖ Livadas v. B radshaw , 512 U.S. 107, 132, 114 S. Ct. 2068, 2082

– 8 3, 129 L. Ed. 2d 93 (1994); see also 42 U.S.C.A. § 1983 ( West 2003). Therefore, to sustain a claim under Section 1983, a plaintiff must show a violation of a right secured by the United States Const itution by a person acting under the color of state law. A Section 1983 claim cannot be premised on a respondeat superior theory. See Ashcroft v. Iqbal , 556 U.S. 662, 676, 129 S. Ct. 1937, 1948 , 173 L. Ed. 2d 868 (2009). However, a municipality may be held to be liable if it i s the execution of the government ‘ s policy or custom that ― inflicts the injury. ‖ City of Canton v. Harris , 489 U.S. 378, 385, 109 S. Ct. 1197, 1203, 103 L. Ed. 2d 412 (1989). A supervisor can be held to be liable if he is (1) personally involved in the constitutional deprivation, or (2) there is a sufficient causal connection between the supervisor ‘ s wrongful conduct and the constitutional violation. Thompkins v. Belt , 828 F.2d 298, 303

- 04 (5th Cir. 1987). Additionally, a supervisory of ficial may be liable ― even without overt personal participation in the offensive act ‖ if the official

― implement[s] a policy so deficient that the policy itself is a repudiation of constitutional rights and is the moving force of the constitutional violati on. ‖ Id

. Governmental employees are entitled to qualified immunity from civil damages ― insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known. ‖ See Harlow v. Fitzge rald , 457 U.S. 800, 818, 102 S. Ct.4

2727, 2738, 73 L. Ed. 2d 396 (1982). Qualified immunity shields a police officer if a reasonable
officer could have believed that the action taken was l awful in light of clearly established law
and the information the o fficer possessed. See Hunter v. Bryant , 502 U.S. 224, 228, 112 S. Ct. 534, 537, 116 L. Ed. 2d 589 (1991); Anderson v. Creighton , 483 U.S. 635, 6 41 , 107 S. Ct. 3034,
30 40 , 97 L. Ed. 2d 523 (1987) ; Tex. Dep't of Pub. Safety v. Rodriguez , 344 S.W.3d 483, 488 (Tex. App.

– Houston [ 1st Dist. ] 2011 , no pet. )

. ― To establish an entitlement to qualified immunity, a government official must first show that the conduct occurred while he was acting in his official capacity and within the scope of his discretionary autho rity. ‖ Beltran v. City of El
Paso , 367 F.3d 299, 303 (5th Cir. 2004). ― Once a defendant has properly invoked qualified immunity, the burden rests on the plaintiff to show that the defense does not apply. ‖ Id

. ; Thomas v. Collins , 860 S.W.2d 500, 503 (Tex . App.

– Houston [1st Dist.] 1993, writ denied). Summary judgment is proper if a plaintiff fails to show that the conduct of the governmental action violated any clearly

- established statutory or constitutional right

. See Leachman v.
Dretke , 261 S.W.3d 297, 315 (Tex. App.

– Fort Worth 2008, no pet.). Describing it as settled law, the Supreme Court held that officers were entitled to immunity for an arrest ― if a reasonable officer could have believed that probable cause existed .‖
Hunter , 502 U.S. at 229 , 112 S. Ct. at 537 . That settled law supports the ruling of the trial court in this case. As the court noted, the ― qualified immunity standard  ̳ gives ample room for mistaken judgments ‘ by protecting  ̳ all but the plainly incompetent or those who knowingly
vio late the law. ‘‖ Id . Within that wide berth, Baker‘s investigation revealed sufficient cause for him to make the arrest. Baker had conflicting information at the conclusion of his investigation. Several eyewitnesses believed that Steven Cook had initiat ed the contact between the two trucks. However, Baker discounted the witnesses‘ renditions because they were some distance from where the contact between the two trucks began. What was decisive to Baker was a contemporaneous emergency telephone call from Flowers‘ s wife made during the incident. In that phone call, which began before the contact between the two trucks, she said that ―John just rammed his truck.‖ This is a slightly ambiguous statement, but it was supplemented by the skid marks left by Flo wers‘ s truck. The skid marks began well within Steven‘s lane of travel, and
Baker concluded that this meant Flowers initiated the contact between the two trucks. Taken together with the remainder of his investigation, Baker had a reasonable basis on whic h to
conclude that Flowers had initiated contact and committed an offense. A witness associated with5

Flowers appeared to state that he had initiated the contact, and the physical evidence

– the skid mark beginning in Steven‘s lane of travel

– appeared to corr oborate that statement. Flowers identifies the harm alleged in this case to be a ― seizure without probable cause resulting in an unlawful deprivation of liberty under the Fourth Amendment.‖ It is not
controversial to state that the Fourth Amendment pro tects persons from seizure without probable cause. However, Flowers makes the further assertion that because the affidavit used to obtain the warrant to arrest him was deficient, it follows that there was not probable cause for his arrest. We disagree. The constitutional claim of false arrest requires a showing of no probable cause. See Brown v. Lyford , 243 F.3d 185, 189 (5th Cir. 2001). Probable cause exists when the ―facts and circumstances within the officer‘s knowledge that are sufficient to warran t a prudent person, or one of reasonable caution, in believing, in the circumstances shown, that the suspect has committed, is committing, or is about to commit an offense.‖ See Club Retro LLC v. Hilton
, 568 F.3d 181, 204 (5th Cir. 2009) (citations omitte d). We apply an objective stan dard, which
means that we will conclude that probable cause existed if the officer was aware of facts justifying a reasonable belief that an offense was being committed, whether or not the officer charged the arrestee with th at specific offense. See Devenpeck v. Alford , 543 U.S. 146, 153

– 54, 125 S. Ct. 588, 594, 160 L. Ed. 2d 537 (2004). The difficulty in this case begins and ends with the affidavit filed by the investigating officer, Steve Baker. As we explained, Baker h ad grounds to conclude that Flowers had committed the offense and to make an arrest. However, he did not communicate those grounds to the magistrate. The affidavit begins with the conclusory statement that Baker ― has reason to
believe and does believe th at [Flower s ] committed this offense based on the following facts: Defendant intentionally and knowingly committed the offense of DEADLY CONDUCT

– P.C.
22.05 MISD A. ‖ In short, Baker swore that he had reason to believe that Flowers committed the
offense be cause Flowers committed the offense.
We are mindful that these kinds of documents are created when an officer fills in b lanks on a form and that this may result in stilted language and assertions, like the one above, that are mere tautologies. But the o bligation remains to show that probable cause exists to make an arrest, and Baker never does so. Instead, throughout the document he s imply repeats that Flowers committed the offense. Each sentence begins with the curious locution , ―Affiant will6

show tha t

. . . .‖ Six sentences begin with that promise, but Baker never gives the magistrate any information to consider. For example, Baker writes that he will show that Flowers was operating a vehicle on US Highway 59 and that he will show that Steven Cook wa s operating his vehicle at the same location. He writes that he will show that Flowers crossed his vehicle over into
Steven‘s lane of travel causing Steven‘s vehicle to drive onto the median and that his actions
were reckless. But Baker never offers the magistrate the basis for his conclusion that the facts he
recites are true. See T EX

. C ODE C RIM

. P ROC

. A NN

. art. 15.05(2) (West 2005) ( ― [ The c omplaint] must show that the accused has committed some offense against the laws of the State, either directly or that the affiant has good reason to believe, and does believe, that the accused has
committed such offense. ‖ ). But it does not follow, necessarily, that Baker lacked probable cause simply because he did not actually write out the basis for his belief that Flowers committed an offense. The necessity of an arrest warrant, especially for a misdemeanor arrest that occurs in public, is a requirement of Texas state law

— an arrest warrant is not re quired by the U.S. Constitution for a
misdemeanor arrest. See Vas quez v. State , 739 S.W.2d 37, 44 (Tex. Crim. App. 1987) ( ― In the context of an arrest, an officer acting with probable cause to arrest may do so without a warrant
and not violate the Fourth Amendment. ‖ ) (citing United States v. Watson , 423 U.S. 411, 96 S. Ct. 820, 46 L. Ed. 2d 598 (1976)) 1 ; Fields v. City of South Houston , 922 F.2d 1183, 1189 (5th Cir. 1991) (despite violation of Texas state law regarding warrantless arrest, ― there is no cause of
action for  ̳ false arrest ‘ under section 1983 unless the arres ting officer lacked probable cause ‖ );
see also Virginia v. Moore , 553 U.S. 164, 173, 128 S. Ct. 1598, 1605, 1605, 170 L. Ed. 2d 559 (2008) ( v iolations of state law are not necessarily violations of Fourth Amendment ; warrantless

arrest ―satisfies the Consti tution so long as the officer has probable cause to believe that the suspect has committed or is committing an offense. ‖ ) (citations and internal quotations omitted); cf. T EX

. C ODE C RIM

. P ROC

. A NN . arts. 14.01 (West 2005) , 14.03, 14.031 (West Supp. 2012) , 14.04 (West 2005) (limiting warrantless arrest to certain circumstances). At the hearing on the defendants‘ summary judgment motion, the issue arose of what result should obtain if the officer had probable cause but did not communicate it in his

1 The U.S. Constituti on does require, generally, a warrant for the police to enter a dwelling to make an arrest. See Payton v. New York , 445 U.S. 573, 586, 100 S. Ct. 1371, 1380, 63 L. Ed. 2d 639 (1980); but see Cornealius v. State , 900 S.W.2d 731, 734 (Tex. Crim. App. 1995) (police may politely knock on a door asking for the person to be arrested without a warrant and may make arrest if suspect surrenders).7

applica tion for an arrest warrant. Flowers submitted a brief on the issue asserting that Baker was not entitled to qualified immunity because no officer could believe that the affidavit contained an allegation of probable cause. Flowers cited Malley v. Briggs
, 475 U.S. 335, 354, 106 S. Ct. 1093, 1098, 90 L. Ed. 2d 271 (1986), for the proposition that ― the shield of immunity [will] be
lost ‖ when a ― warrant application is so lacking in indicia of probable cause as to render official
belief in its existence unreaso nable .‖ However, the Malley decision can be readily distinguished from this case. First, the decision specifically did not address the question of whether the officer‘s ― conduct in [that] case was in fact objectively reasonable. ‖ Id ., 475 U.S. at 346 n. 8, 106 S. Ct. at 1098 n.8. Second, the allegations contained in the warrant application in Malley appear to be the sum total of the information available to the police. That is clearly not the case here, where Baker actually had information that led him to believe, perhaps mistakenly, that Flowers had committed an offense but did not communicate it to the magistrate. At oral argument, Flowers contended that the determination of probable cause should be
limited to the affidavit and cited Kohler v. Englad e , 470 F.3d 1104 (5th Cir. 2006), in a postsubmission brief, in support of that contention. In Kohler , the court held only the affidavit should be examined to determine if probable cause existed for a search warrant. Id . at 1112. Although it is called a seizure warrant, the court makes clear that the warrant was a ― search

warrant ‖ for which the police must submit an affidavit ―containing facts sufficient to  ̳ provide the magistrate with a substantial basis for determining the existence of probable cause. ‘ ‖ Id . at 1109 (quoting Illinois v. Gates , 462 U.S. 213, 239, 103 S. Ct. 2317, 76 L. Ed. 2d 527 (1983) )

. This is important because, while the Fourth Amendment does not require a warrant as a prerequisite to a public arrest, a search without a warrant is p resumptively unreasonable , and therefore unconstitutional, without a warrant. See , e.g. , Kentucky v. King
, __ U.S. __, 131 S. Ct. 1849, 1856, 179 L. Ed. 2d 865 (2011 ). 2 Indeed, the Kohler case cites Whiteley v. Warden , 401 U.S. 560, 564

- 65, n.8, 91 S. Ct . 1031, 1035 n.8, 28 L. Ed. 2d 306 (1971), for the conclusion that ―a n otherwise insufficient affidavit cannot be rehabilitated by testimony concerning information possessed by the affiant when he sought the warrant but not disclosed to the issuing magistr ate. ‖ However, in analyzing whether the evidence must be suppressed in that case, the Court rejected the State‘s argument that a lower standard should prevail. Id ., 401 U.S. at 568, 91 S. Ct. at 1037. Nevertheless, the court analyzed whether the arresti ng officer possessed probable cause to make

2 The Court also notes that an arrest in the home requires a warrant. Flowers was not arrested in his home.8

a warrantless arrest independently of the information contained in the application for a warrant.
Id . The Court concluded that the evidence must be suppressed because the ―complaint on which
the warrant issued‖ could not support a finding of probable cause and also because the arresting officer did not possess additional information to corroborate the otherwise inadequate
information that formed the basis for the arrest. Id . If the only question were whether t he warrant was supported by probable cause, the second area of analysis would have been unnecessary and irrelevant. In this case, because Baker‘s assessment of probable cause was reasonable, Flowers has not shown that Baker was not entitled to qualified immunity or that the trial court erred in granting summary judgment as to Baker. With respect to the liability of Havard, the police chief, and the City of Diboll, the trial court properly granted summary judgment. Havard played no part in the arrest of Flowers. The only argument Flowers offered in his response to the motions for summa ry judgment with regard
to the C ity and to Havard is that there was a lack of training on the ―fundamental constitutional issue of probable cause‖ and that the lack of t raining is ―so pervasive‖ that Havard recognized
that the affidavit was insufficient but had ―failed to train‖ his senior officers. As we discussed in the previous section, an arrest warrant is not required, in most circumstances, by the U.S.
Constitutio n. See , e.g. , Vasquez , 739 S.W.2d at 44 . Therefore, even the assertion of a lack of training fails because there was no civil rights violation on what Flowers describes as the ―fundamental constitutional issue of probable cause.‖
T o present a valid cl aim for a violation of Section 1 983 by a municipality , a plaintif f must plead facts showing that (1) a policy or custom existed, (2) the governmental policymakers actually or constructively knew of the policy ‘ s existence, (3) a constitutional violation occ urred, and (4) the custom or policy served as the moving force behind the violation. Meadowbriar Home for Children, Inc. v. Gunn , 81 F.3d 521, 532

- 33 (5th Cir. 1996). A plaintiff cannot simply offer a conclusory description of the policy or custom and it s relationship to the
constitutional violation but must, instead, offer specific facts. See Spiller v. City of Texas City, Police Dep ’

t , 130 F.3d 162, 167 (5th Cir. 1997). Furthermore, proof of a single incident generally will not support a finding of in adequate training as a matter of custom or policy. Forgan v. Howard C

nty , 494 F.3d 518, 522 (5th Cir. 2007). The core of a lack of training assertion is that the municipality is deliberately indifferent, and this is ordinarily established by a9

― pattern of violations and [showing] that the inadequacy of the training and supervision is obvious and obviously likely to result in a constitutional violation. ‖ See Cousin v. Small , 325 F.3d 627, 637 (5th Cir. 2003) (citations and internal quotations omitted). Flowers concedes that he failed to produce ―evidence of flawed policies, customs, or traditions.‖ He argues that he should be excused from such a requirement because the City and Havard have no policies. We disagree. There is no showing that the City o f Diboll is deliberately indifferent to a constitutional violation committed by its employee. Because there is no evidence that Havard or the City was deliberately indifferent to the possibility of a lawless
arrest or that there was a constitutional viola tion, the trial court properly granted the no evidence summary judgment motion as to defendants Harvard and the City. We overrule Flowers‘ s three
issues.

D ISPOSITION Having overruled Flower‘s three issues, we affirm the judgment of the trial court.



### S AM 

### G RIFFITH Justice

Opinion delivered May 22 , 2013. Panel consisted of Worthen, C.J., Griffith, J., and Hoyle, J.

(PUBLISH)10 

## COURT OF APPEALS TWELFTH COURT OF APPEALS DISTRICT OF TEXAS

JUDGMENT

MAY 22 , 2013

NO. 12

- 12

- 00107

- CV

JOHN FLOWERS , Appellant V. CITY OF DIBOLL, TEXAS, STEVE BAKER AND KENT HAVARD ,

Appellee s

Appeal from the 159th Judicial Dist rict Court
of Angelina County, Texas. (Tr.Ct.No. 41,039

- 07

- 12

THIS CAUSE came to be heard on the oral arguments, appellate record and briefs filed herein, and the same being considered, it is the opinion of this court that there

was no error in the judgment.

It is therefore ORDERED, ADJUDGED and DECREED that the judgment
of the court below be in all things affirmed , and that all costs of this appeal are hereby adjudged against the appellant, JOHN FLOWERS
, for which execution may issue, and that this decision
be certified to the court below for observance.

Sam Griffith , Justice. Panel consisted of Worthen, C.J., Griffith, J., and Hoyle, J.