*Pursuant to 5TH CIR. R. 47.5, the Court has determined that this opinion should not be

published and is not precedent except under the limited circumstancesset forth in 5THCIR. R. 47.5.4.

2

See Tex. Penal Code § 42.07(c). 

UNITED STATES COURT OF APPEALS

For the Fifth Circuit

No. 97-10047

Summary Calendar

LELA MAE SMITH,

Plaintiff-Appellant,

VERSUS

ROBERT HARRIS; LEE GREEN; ROBERT POLLEY,

Defendants-Appellees.

Appeal from the United States District Court

For the Northern District of Texas

(3:95-CV-2387-G)

December 9, 1997

Before WISDOM, WIENER, and DENNIS, Circuit Judges.

PER CURIAM:*

At about 5:37 AM on October 16, 1994, Kaufman County peace officers arrested Lela Mae

Smtih at her home for the offense oftelephone harassment, a class B misdemeanor under Texaslaw.2

Smith had called the KaufmanCounty “911" emergency systemseveral times on the night of October

15, 1994, trying to locate her son who had run away after being punished by Smith and her husband.

The officers investigated Smith’s complaint, and advised Smith that her son had been placed in the
3 The district court denied the defendants’ request for summary judgment on the

grounds of qualified immunity.

4 Taylor v. Gregg, 36 F.3d 453, 456 (5th Cir. 1994).

2

custody of Child Protective Services. Smith was warned to stop calling the 911 system because her

situation was not an emergency. Smith admits being warned, but she continued to call the police on

the 911 system. After Smith failed to abide by the warnings, the officers arrested Smith for telephone

harassment. Those charges were later dropped.

Lela Mae Smith filed this 42 U.S.C. § 1983 and § 1988 action against Robert Harris, the

Sheriff of Kaufman County, Texas, Lee Green, a Kaufman County peace officer, and Robert Polley,

a police dispatcher who handles the Kaufman County “911" syst em, alleging that the defendants

conspired to arrest her falselyand to incarcerate her illegally, without probable cause. The defendants

moved forsummaryjudgment, arguing that theyacted with probable cause and that theywere entitled

to qualified immunity. The district court granted summary judgment for the defendants, finding that

the defendants acted with probable cause.3 Smith appeals. 

In this appeal, Smith maintains that summary judgment is inappropriate on the issue of

probable cause because there are genuine issues of material fact. First, in her sworn affidavit, Smith

asserts that she was arrested for the offense of telephone harassment at her home at about 5:00 AM,

but the warrant for her arrest was “issued” at 6:00 AM. Smith also asserts that the police officers

took the warrant to the magistrate to be signed after she was arrested. This issue of timing does not

preclude summary judgment. A finding of probable cause by an independent intermediary such as a

magistrate or a grand jury will cut off the peace officers’ liability for false arrest under § 1983.4 This
5

Id. Even though telephone harassment is a misdemeanor, no arrest warrant was

needed at the time of arrest. Fields v. City of South Houston, Texas, 922 F.2d 1183, 1189 (5th Cir.

1991).

6

See Hart v. O’Brien, 1997 WL 656282, *14 (5th Cir. 1997); Taylor, 36 F.3d at 457.

7

See Oswalt v. Sara Lee Corp., 74 F.3d 91, 92 (5th Cir. 1996).

8 The recordsshow that, on the night of October 15, 1994, Smith called “911" at 7:36,

8:59, 9:20, and 10:42 PM.

3

bar applies even if the probable cause finding is made after the defendants’ arrest.5 At most, Smith

has shown that the magistrate found probable cause for her arrest after the fact. This is sufficient to

insulate the defendants from liability.

Smith also alleges that the defendants fabricated information in the affidavits supporting the

arrest warrant. Smith argues that these fabrications concerning the number of phone calls made to

the 911 system tainted the magistrate’s finding of probable cause and, therefore, that finding of

probable cause does not insulate the defendants from liability for false arrest. An officer who

provides false statements in the affidavits supporting an arrest warrant may lose the insulation

provided by the magistrates finding of probable cause if the § 1983 plaintiff can show that the false

statements tainted the magistrates decision and were made either recklessly or maliciously.6 After

considering all of the evidence, we conclude that Smith has presented insufficient evidence from

which a reasonable juror could have concluded that the defendants provided false information that

tainted the magistrate’s decision.7 In her affidavit, Smith states that she called the 911 system only

twice. She admits, however, that she was warned not to call 911 because her situation was not an

emergency. The computer records from the 911 system show that Smith made four calls to 911.8

These records support the defendants’ assertions that several calls were made. Standing alone,
4

Smith’s statement is insufficient to overcome the objective evidence from the computer records.

Summary judgment on this issue is appropriate. 

The judgment is AFFIRMED.