### I N THE UNI TED STATES COURT OF APPEALS FOR THE FI F TH CI RCUI T

No. 11-20906

RONALD CURTIS; CEDRIC JOHNSON; CURVIS BICKHAM, Plaintiffs-Appellants,
v. W. ANTHONY, Houston Police Department Sergeant; R. CHAPPELL, Houston Police Department Officer; C. W. STIVERS, Houston Police Department Officer; UNKNOWN HOUSTON POLICE DEPARTMENT EMPLOYEES; CITY OF HOUSTON; MILTON WRIGHT, Fort Bend County Sheriff; KEITH PIKETT, Former Fort Bend County Sheriff's Department Deputy; UNKNOWN FORT BEND COUNTY EMPLOYEES; FORT BEND COUNTY, Defendants-Appellees.

Appeal from the United States District Court for the Southern District of Texas

Before STEWART, Chief Judge, and KING and OWEN, Circuit Judges. PER CURIAM: P l a i nt if f s - Ap p e l l a n t s , R o n al d C u rt is, Cedric Johnson, and Curvis B i c kh a m (collectively, “Appellants”) a p p e al th e di s tri c t c o u rt ’ s gr a n t o f s u m m a ry j u dgment

on their claims under 42 U.S.C. § 1983 in favor of Defendants-Appellees: (i) W. Anthony, a sergeant in the Houston Police Department (“HPD”); (ii) R. Chappell, an officer in the HPD; (iii) C. W. Stivers, an officer in the HPD; (iv) the City of Houston; (v) Milton Wright, the Sheriff of Fort Bend County, Texas; (vi) Keith Pikett, a former deputy in the Fort B end County Sheriff's D epartment; and (vii) U n i t e d S t a te s C o u rt o f A p p e al s

F i f t h C i rc u i t 

### F I L E D March 6, 2013 Ly l e W . Cay ce Clerk Case: 11-20906 Document: 00512166063 Page: 1 Date Filed: 03/06/2013No. 11-20906

Fort Bend County (collectively, “Appellees”). 1 For the r easons provided below, we AFFIRM the district court’s judgment.

I. Background on Dog-Scent Lineups Appellants chall e n g e Appellees’ reliance on “dog-scent lineups,” which Pikett conducted and which the municipalities used to arrest, charge, and hold Appellants. A. Pikett’s Procedures To conduct his lineups, Pikett made u s e of scent-discriminating bloodhounds. First, Pikett would obtain a scent sample from the suspect under investigation by w iping the suspect with a sterile gauze pad. T he gauze p ad, containing t he suspect’s “h u m a n scent” and “skin cells,” would be stored in a Ziploc bag until the time of the lineup. At the time of t he lineup, a s e c o nd officer would arrange six cans, one containing the s uspect’s scent pad and the other five containing scent pads from other p ersons of t he same gender and race. The officer would arrange the cans approximately t en feet apart and positioned p erpendicular t o the wind so as to minimize the crossing of scents. Thereafter, Pikett w ould e xpose a b loodhound to a scent sample taken from the crime scene. T h e trained b loodhound would “alert” if the scent pad from a ny of the six c ans matched the crime scene sample. Pikett would repeat the exercise with a second bloodhound to confirm the first bloodhound’s alert. 2. Pikett’s Connection to the HPD Although Pikett w a s a deputy with t he Fort Bend County Sheriff’s Department, he volunteered his services to the HPD.

1 Ap p ellants als o a s s e r t claim s agains t “unk now n” H PD and Fort Bend County em p loyees

. Ad d itionally, to the extent Ap p ellants as s ert claim s agains t Anthony, Chap p ell, Stivers , and Wright in their of f icial, as op p os ed to their ind ivid ua l , c a p a c i t ies , w e ad d res s thos e claim s in our dis cus s ion of Ap p ellants ’ claim s agains t the City of H ous ton and Fort Bend County. 2 Case: 11-20906 Document: 00512166063 Page: 2 Date Filed: 03/06/2013No. 11-20906

3. Texas Caselaw Concerning the Use of Dog-Scent Lineups Texa s s t a te jurisprudence concerning the use of dog-scent lineups has evolved over the p ast decade. However, at the time of the events a t i ssue in this
case, ap p r o x i m ately 2007 to 2009, the Texas courts uniformly had accepted Pikett as an e x p ert on dog-scent lineups. F urthermore, the Texas courts uniformly had a c cepted t he results o f his lineups as inculpatory evidence in criminal proceedings. The following is a representative timeline of recent Te x a s c a s e s c oncerning the use of dog-scent lineups. Each of these cases personally involved Pikett:

( i) W i n ston v. State , 78 S.W.3d 522, 527 (Tex. App. 2002 ) (concluding that the u se o f dog-scent lineups is a “legitimate field of expertise”); (ii) Robinson v. S tate , No. 09-06-51-CR, 2 006 WL 3438076, at * 4 ( T ex. App. Nov. 29, 2006) (unpublished) (applying Winstonto reach the same conclusion); (iii) Winfrey v. S tate , 323 S.W.3d 875, 88 4

- 8 5 ( T ex. Crim. App. 2010) (holding that inculpatory evidence obtained from dog-scent lineups “ may raise a strong suspicion of

. . . guilt,” but “is m erely supportive” and, “when used alone or as primary evidence, [is] legally insufficient to support a conviction”); 2 (iv) State v. Smith , 335 S.W.3d 706, 7 12 (Tex. App. 2011) (affirming the trial court’s finding that the state had failed to establish the reliability of Pikett’s dog-scent lineups, but declining to reach whether the u se of s uch lineups remains a legitimate area of expertise in light of Winfrey v. State); and

2 This “ Wi nf

rey ” cas e, w hich p roceed ed in s t a t e c o u r t, is the p red icate crim inal p roceed ing to Wi nf

rey v . Sa n Ja ci nto County , N o. 11- 20555, 2012 WL 3062159 ( 5th Cir. Jul. 27, 2012) ( unp ublis hed) , a f ed eral cons titutional tort cas e d is cus sed throughout this op inion. All s ubs equent ref

erences to “ Wi nf

rey ” ref er to the fed eral p roceed ing. 3 Case: 11-20906 Document: 00512166063 Page: 3 Date Filed: 03/06/2013No. 11-20906

(v) Powell v. Sta t e , N o. 14-09-398-CR, 2 011 WL 1579734, at * 2 n.2, 3 (Tex. App. Apr. 21, 2 0 1 1) (unpublished) (affirming the trial court’s finding that P ikett’s dog- s c e nt lineups were reliable with respect to the “p r ocedures employed i n t his particul a r c ase,” and n oting that t h e appellant had not challenged the facial legitimacy of dogscent lineups). II. Background on Winfrey v. San Jacinto County On July 27, 2012, this Court i ssued a d e c i sion in W infrey v. San Jacinto County , No. 11-20555, 2012 WL 3 062159 (5th Cir. Jul. 27, 2012) (unpublished), which resolved legal issues that directly parallel those raised in this appeal and which addressed much of the same evidence. 3 I n Winfrey , t h e plaintiff, w ho was represented by the same counsel as the Appellants here , brought a similar action under 4 2 U.S.C. § 1983 pertaini n g t o a d og-scent l i neup conducted by Pikett. T h e W i nfrey plaintiffs sued Fort Bend County; Pikett; and Wright; as well a s San Jacinto Coun t y , Texas; various San Jacinto County officers; and various Texas Rangers. A s in t h e instant case, the plaintiffs argued that (i) Pikett’s dog-s c e n t lineups were a fraud; (ii) the other i ndividual defendants knew it, a nd either actively c o n s p i r e d with Pikett or f ailed t o intervene; and (iii) the municipal defendants had failed to establish policies to monitor the u se of the lineups for fraud and unreliability. As in the instant case, th e i n d i v i dual defendants asserted qualified i m munity defenses. The municipal defendants argued that there was no obligation to establish a policy to monitor the lineups, and that the absence of such a policy would have created liability only if t he municipalities had failed to establish one specifically to evade liability.

3 Wi nf rey is an unp ublis hed op inion and , theref o r e , i s n ot bind ing p reced ent in this Circuit. H ow ever, in light of Wi nf rey ’s s ignif

icant overlap w ith the ins tant cas e, w e quote its
w ell- reas oned analys is where ap p rop riate, as p ers uas ive authority, and cite to its f acts f or the lim ited p urp os e of com p aring and contras ting them w ith the ins tant ones in ord er to highlight the ins tant cas e’s d is tinct f actual p os ture. 4 Case: 11-20906 Document: 00512166063 Page: 4 Date Filed: 03/06/2013No. 11-20906

The same district court judge as i n t h e i n s tant case granted summary judgment to all defendants. As in the instant case, the district court d enied the plaintiffs’ r equest for supplemental discovery p ursuant to Federal Rule of Civil Procedure (“FRCP”) 56(d). On appeal, the Winfrey panel reversed summary j udgment as to the San Jacin t o County officers, c iting, i nter alia , a factual dispute o ver whether the officers had acted recklessly by submitting search and arrest warrant a ffidavits containing false statements and material omissions. It also reversed summary judgment as to Pikett, citing a factual dispute over whether a videotape of the dog-scent lineup at issue demonstrated that Pikett had manipulated his bloodhounds to cue false a lerts during the lineups. The panel affirmed summary judgment as to the remaining defendants on qualified immunity grounds and for failure to establish municipal liability.

III. Background on the Instant Case A. Facts Pertaining to Curtis A T -Mobile store in Harris County, Texas was burglarized in June 2007. The p erpetrator had pried open the store’s back d oor and left mud a t the store’s entrance. The HPD responded, and officers spotted C urtis and a p assenger in a car near the store. Curtis had a lengthy criminal record. In the car, t h e officers spotted a crowbar, a sledge hammer, a b olt cutter, and two tire irons. Markings on t he s t ore’s back door matched m arkings on the

crow bar. While the officers checked the d r i v e r ’ s l icenses of Curtis and the passenger, t h e y n o t i c ed that someone had moved t he crowbar from the car’s center console to under the rear floorboard. Both C urtis a nd t he passenger were wearing muddy shoes. Additionally, the officers s potted two unopened T-Mobile phones and an unopened T-Mobile battery in the car.

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C u rt i s a n d th e passenger provided conflicting accou n t s t o th e H P D o f f i c e r s . At first, Curtis stated that the tools found in the car were his, and that he and the passenger had b een using them to perform car maintena nce w ork before stopping to eat a t a restaurant next to the T-Mobile store. Later, Curtis denied that he owned the tools. At first, the p assen ger stated that he and C urtis had been at the store because Curtis had driven the p assenger t o the store to pay his T-Mobile bill. Later, the passenger stated that, after Curtis had driven him to the T-Mobile sto r e , C urtis had attempted to break into t h e store using the crowbar. The HPD officers arrested Curtis a n d th e p a ssenger. However, the officers relea s e d t h e m t he s ame day after the magistrate j udge found that t here was insufficient probable cause to hold them. Stivers had been investigating a string of burglaries involving two other T-Mobile stores within the vicinity. Upon learni ng of Curtis’s arrest, Stivers compared Curtis’s driver’s license photo with a s till photo from a surveillance video of another T -Mobile store burglary. He determ i n ed that the photos matched. Notwithstanding the above, a wallet, fingerprints, and blood left at one of the burglary scenes did not match Curtis. Therefore, Stivers approached Pikett to conduct a dog-scent li n e u p. Pikett had c o nducted lineups for Stivers in two prior cases. After Curtis refused to p rovide a voluntary scent s ample, Stivers obtained

one by subpoena. Pikett used h is d o g s t o compare C urtis’s scent with scent samples taken from the three burglarized stores. Stivers obtained these scent samples weeks a nd, in some cases, months afte r t h e t i m es of the burglaries. Accordingly, the burglarized st o res had experienced routine cleanings and customer traffic between the times o f the burglaries and the t imes that Stivers

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obtained the scent samples. Nevertheless, the dogs alerted to a match between each store’s scent sample and Curtis’s scent. Curtis again was arrested. B ased on t he photographic evidence and the lineup confirmation, the magistrate j udge f ound that there w as probable cause to hold him. A Harri s C ounty assistant district attorney charged Curtis with burglary and theft. Two grand juries indicted him on the charges. The string of burglaries at T-Mobile stores continued after Curtis’s arrest. After e ight months i n j a i l , C urtis was released and the c h arges were dropped without a trial. B. Facts Pertaining to Johnson and Bickham Three people were murdered in a H oust o n home in November 2007. Thereafter, t he perpetrators set the home on fire. When HPD officers responded t o t h e s cene, they f

ound the charred remnants o f a gasoline can, a cigarette lighter, and t wo guns, a s w ell as the remains of t he victims, w ho had been shot in the head. The HPD a s s i gned Anthony and Chappell to lead an investigation. Anthony and Ch a p p e l l traced the charred gas can t o a nearby service station, where they obtained a surveillance video of two men pur c h a s i n g the c an. The HPD released still photos from the surveillance video to the public, whereupon multiple witnesses identified Johnson because his distinctive girth and tattoos matched one o f t h e men in the released photos. Some of those witnesses revealed that Johnson, at one time, had worked at an apartment complex that

one of the shooting victims h ad managed. T he witnesses reported that Johnson and the victim frequently had argued. Johnson’s alibi was that he was work i ng a t the time of the shootings. However, J ohnson’s present b oss informed the HPD that Johnson had left work several h ours prior t o the murders. Johnson’s job s ite w as situated immediately

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across the street from the service station where t he perpetrators had purchased the gas can. After learnin g o f Pikett from a fellow officer, Anthony and Chappell approached him t o conduct a dog-scent lineup that i ncluded Johnson. Johnson provided a voluntary s cent sample. Pikett c ompared Johnson’s scent with scent

s a m p l e s t aken from all four items recovered a t the murder scene. The dog s alerted to a match for each item. J o h nson was arrested, and the magistrate judge found that there was probable cause to hold him. T h e d i s t r i c t a ttorney filed charges for two of the murders, and the grand jury indicted him on those charges. A few months into Johnson’s incarceration, Will Samuels, Johnson’s cell mate, contacted the dis t r i ct attorney’s office to report that Johnson had confessed to the shootings. Samuels then met with Anthony and Chappell in the
presence of his attorney. H e relayed t o t hem crime s cene details known only to the investigators. In April 2008, Samuels notified Anthony and C happell that Johnson had identified B ic k h a m as his accomplice i n the s hootings. Anthony a nd Chappell again a p p r o a c h ed Pikett, who compared B ickham’s scent with scent samples taken from the four i t e m s r ecovered at the murder scene. At that point, the scent samples from the murder scene were more than a y ear o ld. Nevertheless, the bloodhounds alerted to a m a t c h for three of the four i tems. Bickham was arrested, charged, and indicted for two of the murders. Subsequently, Samuels recanted his stat e m e n ts. I ndeed, Samuels confessed to per p e t rating the murders himself. In M ay 2009, Johnson and Bickham were r eleased, and the charges against t h em were dropped. Johnson had been incarcerated for approximately eig h t e en months, and Bickham for

seven m onths. Later, the HPD det e r m i n e d t h at Samuels could not have perpetrated the m urders b e c a u s e h e was working in B oston a t the time of the

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shootings. A dog-scent lineup conducted by P ikett i ndicated that Samuels’s scent did not m atch any of t he items recovered at the murder scene. Samuels ultimately a d v i s e d Anthony that he had falsely confessed t o the murders in order to stop threats and attacks, made b y g ang members a ffiliated with Johnson, within the prison. C. Procedural History Appellants brought the instant action a gai n s t ( i) Stivers, Anthony, and Chappell in their individual capacities; (ii) Wright in his individual capacity; (iii) the City of Houston; and (iv) Fort Bend County, pursuant to 42 U.S.C. § 1983. 4 Among o t her things, Appellants alleged: (i) t hat P ikett had m anipulated and misrepresented the results of his d og - s c e n t lineups to manufacture fraudulent inculpatory evidence in violation of Brady v. Maryland , 373 U.S. 83 (1963); (ii) that Anthony, Chappell, and Stivers h a d f a i led to intervene to prevent Pikett’s alleged f rauds; (iii) alternatively, that Anthony, Chappell, and Stivers a ctively had conspired with Pikett to m anufacture fraudulent evidence; (iv) that Anthony and Chappell had coerced Samuels to implicate J ohnson and Bickham falsely; (v) that Wright w a s l i a b l e for failing to train or supervise Pikett; and (vi) that F ort Bend County and the City of Houston were liable under Monell v. Department of Social Services , 436 U.S. 6 58 (1978), for failing to establish p olicies to monitor the use of dog- s c e n t l ineups for unreliability and fraud. After limited discovery, consisting largely o f an exchange of documentary evidence, including videos of Johnson’s and Bickham’s lineups, Appellees moved for summary judgment. In t heir motion, Appellees argued: (i) that no constitut i onal right of Appellants had been violated; (ii) regardless, that the nonmunicipal Appellees were protected by qualified immunity, with respect to the

4 As noted earlier, Ap p e l l a n ts als o as s ert claim s agains t “unk now n” H PD and Fort Bend County em p loyees

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claims broug h t in their individual capacities, because their actions were objectively reasonable and did not violate any clearly established rights; (iii) th at Wright was not personally involved i n t he events at issue ; ( i v) t h at the magistrate judges’ findings of probable cause, the prosecutors’ filings of charges, and the grand juries’ indictments had severed causation; (v) t hat t h e municipal Ap p e l l e e s h ad n o o bligation to establish a policy to monitor d og-scent lineups, and that the absence of such a policy would have created liability on l y i f the municipalities had failed to establish one specifically to evade liability; (vi) that Appellants had offered no evidence to s upport their claims oth e r t h a n expert reports, which Appellees attacked as unreliable, contradictory, and conclusory; and (vii) that Appellants, in general, had offered only vague a nd con clusory allegations, which lacked sufficient evidentiary support. In response, Appellants submitted an affidavit, pursuant to FRCP 56(d), requesting supplemental depositions and interrogatory discovery in order to develop a dditional facts to oppose Appellees’ motion. The district court denied Appellants’ FRCP 5 6(d) request as insufficiently articulated and s pecu l a t i v e,

e specially in light of the non-municipal Appellees’ assertions o f qualif i e d i m m u nity. The district court then granted s ummary judgment i n favor of Appellees, citing, inter alia , qualified immunity an d insufficient evidence of constitutional violations. Appellees purs u e th e s a m e c l ai m s on appeal. However, they also challenge the district court’s denial of their FRCP 56(d) request as an abuse of discretion. IV. Standard of Review A. Summary Judgment This Court reviews de novo a district court’s grant of summary judgment

on the i ssue of qualified immunity and applies the same standards a s the district court. Mack v . City of A bilene , 641 F. 3 d 5 4 7 , 5 5 5 (5th Cir. 2006) (per curiam) (citation omitted). “ Summary j udgment is proper when t he pleadings and

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evidence demonstrate that n o genuine issue of material fact exists a nd the movant is entitled t o j u dgment as a matter of law.” Pl uet v. Frasier , 355 F.3d 381, 383 (5th Cir. 2004) (citation omitted); see also Fed. R. Civ. P. 56(c). When reviewing grants of summary judgme n t, this Court “construe[s] all facts and inferences in the l ight most f avorable to the nonmoving party.” Murray v. Earle , 405 F.3 d 278, 284 (5th Cir. 2005) (citation o mitted). “Rule 56(c) m andates the entry of summary judgment, after adequate time for discovery and upon motion, against a party who fails

. . . to establish t h e existence of an element e ssential t o t hat party’s case, and on which that party will bear the burden of p r o o f a t trial.” Celotex Corp. v. Catrett , 477 U.S. 317, 322 (1986). B. FRCP 56(d) Requests for Supplemental Discovery We review for abuse of discretion “the district court’s decision to preclude furth e r discovery prior to granting summary judgment.” Krim v. BancTexas Grp., Inc. , 989 F.2d 1435, 1 441 ( 5th Cir. 1 9 9 3 ) ( citations omitted). Notwithstanding t h i s discretion, FRCP 56(d) “allows for further discovery to

s af e gu a rd non-moving parties from sum m a ry j u d g m e nt m o ti o n s th at th e y c a n n o t adequate l y o p pose.” Culwell v. City of Fort Worth , 468 F.3d 868, 8 71 (5th Cir. 2006) (citation omitted). “ Such motions a re broadly favored and should be liberally granted.” Id. (citation omitted). N e v e r t heless, because qualified immunity “is an immunity from suit rather than a mere defense to l i ability,” the district court s hould limit the extent of discovery i f it is avoidable. See Mitchell v. Forsyth , 472 U.S. 511, 526 (1985) (4-3) (emphasis in original). V. Discussion As noted above, Appellants brough t c l a ims alleging: (i) that Pikett had manipulate d and misrepresented the results of his lineups to manufacture fraudulent evidence in violation of B rady v. Maryland , (ii) that Anthony, Chappell, and Stivers had failed to intervene to p revent P ikett’s alleged frauds; (iii) alternatively, that Anthony, Chappell, and Stivers actively had conspired

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with P ikett to manufacture fraudulent evidence; (iv) that Anthony and Chappell had c oerced Samuels to implicate Johnson and Bickham; (v) t h a t Wright was liable for failing to train o r supervise Pikett; and (vi) that Fort Bend County and the City of Houston were l iable under Monell v. Department of Social Services , for failing to e stabli s h policies t o monitor the use of dog-scent l i neups for unreliability and fraud. On N o vember 9, 2012, we directed counsel to “file simultaneous letter briefs addressing in detail the significance of” Winfrey , 2012 WL 3062159, which resolved legal i ssues t hat directly parallel those raised in this a p p e a l and addressed much of the same evidence. 5 The p a ne l i n Winfrey affirmed the d i s t r i c t court’s grant of s ummary judgment in part, but vacated summar y judgment as to two of the San Jacinto County officers and as to Pikett. Here, for t he s a m e r easons provided in Winfrey , we affirm summary judgment as to Wright, Fort Bend County, the City of Houston, and the unknown H PD and Fort Bend C o u n ty e m p l o y e e s , o n qu al ified immunity grounds and for failure to establish municipal liability. That said, the factual circumstances here are such that, fully applying the reasoning from Winfrey , we also affirm summary judgment as to the remaining Appellees. A. For the same re a s ons provided in Winfrey , we affirm summary j u d gm e nt a s to Wright, Fort B end County, the City of Houston, and the unknown HPD and Fort Bend County employees. 1. The Applicable Law

a. Qualified Immunity “Qualified immunity s hields f ederal a nd state officials from money damages unless a plaintiff pleads facts showing (1) that t he official violated a

5 We ref

er to the p arties ’ res pective letter briefs as the “Ap pellants ’ Letter Br. , ” the “FBC Let t e r B r . ” ( Wright, P ik ett, Fort Bend County, and the unk now n Fort Bend County em p loyees ) , and the “H ous . Letter Br. ” ( Stivers , Anthony, Chap p ell, the City of H ous ton, and the unk now n H P D em p loyees )

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statutory or constitutional r ight, and (2) that the right was ‘clearly established’ at the time of the challenged conduct.” Ashcroft v. Al-Kidd , ___ U.S. ___, 131 S. Ct. 2074, 2080 (2011) (quoting Harlow v. F itzgerald , 457 U

. S. 800, 818 (1982) (c i t a t i o n s o m i t t e d)). “A Government official’s conduct viola t e s c l e a rly e s t ab l i s h e d law when, at the t i me o f the c hallenged conduct, ‘[t]he contours of [a] right [are] sufficiently c lear’ that every ‘re a s onable official would have understood that what he i s d o i n g violates that right.’” Id. at 2083 (quoting Anderson v. Creighton , 483 U.S. 635, 640 (1987) (alterations in original)). Th is inquiry into the objective legal reasonableness of the official’s c o n du c t operates to ensure that the o ff i c i a l i s on n otice that his conduct is unlawful before he can be subjected to suit. Pearson v. Callahan , 555 U.S. 2 23, 244 (2009) (citations and internal quotation marks omitted). Thus, “[q]ualified immunity gives g overnment officials breathing room to make reasonable but mistaken judgments about open legal questions. When properly applied, it p rotects ‘all but the plainly incompetent or those who knowingly violate the law.’” Al-Kidd , 131 S. Ct. at 2085 (quoting Malley v. Briggs , 475 U.S. 335, 341 (1986)).

b. Probable Cause “[P]robable cause requires only a p r o b ability or substantial chance of criminal activity, not an actual showing o f such activity.” Ill. v . G ates , 462 U.S. 213, 245 n.13 (1983). Thus, “[p]robable cause exists w h en the t otality of facts and circumstances within a police o fficer’s knowl e dge at t he moment of arrest

are sufficient f

or a reasonable person to conclude that th e suspect h ad committed

or was committing an offense.” Mack , 641 F .3d at 552 n . 1 (citation and internal quotation marks omitted). A trial court “considers the expertise and experience o f the law enforcement officials w h e n considering what a ‘reasonable person’ would have concluded.” Id. (citation omitted). T his Court reviews the trial c ourt’s probable

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cause determination de novo. United States v . Lopez-Moreno , 420 F.3d 420, 430 (5th Cir. 2005) (citing Ornelas v. United States , 517 U.S. 690, 699 (1996)).

c. Municipal Liability “Knowledge on the part of a policymaker that a constitutiona l v iolation will most likely result from a[n]

. . . official custom or policy is a sine qua non of municipal liability under section 1 983.” Burge v . St. Tammany Parish , 336 F.3d 363, 370 ( 5th Cir. 2003) (footnote omitted). Accordingly, a plaintiff must establish that the body g overning a municipality, or an official to whom the body had delegated its policy-making authority, h ad actual or constructive knowledge of the custom or policy at issue. Id. (citation omitted). 2. The Panel’s Analysis in W i nfrey The Winfrey panel concluded t h a t t h e plaintiff’s claims against the defendants, other t han Pikett and the two San J acinto C o unty o fficers, “fail[ed] because, e ven i f [the plaintiff] allege[d] violations o f clearly-established constitutional rights, he lack[ed] evidence showing that t h e Defendants were on notice that their actions were unlawful. ” 2 0 1 2 WL 3 062159, at *4 (internal quotation marks omitted) (citing Pearson , 555 U.S. at 244 (citation omitted)). In reaching that conclusion, th e p a n el determined that the d efendants had not b een “objectively unreasonable in seeking Pikett’s assistance and then using the resulting i n f

o r m ation a s part of their investigation.” Id. After all, at the time of the d e f

e n dants’ investigation, “Pikett enjoyed a s olid reputation.” I d. “[A]t l e ast one Texas c ourt had held that scent line-ups were a ‘legitimate field of expertise’ and that P ikett’s methods properly relied u p o n a n d utilized the principles involved in the f i e l d

. ” Id. (quoting Winston , 78 S.W.3d a t 527, and citing Robinson , 2 006 WL 3438076, at * 4). Thus, Pikett’s co n d u c t a lone could not “establish that [ t h e d efendants] k n owingly passed along Pikett’s a llegedly false evidence, consciously disregarded a duty to intervene, or w illf u l ly c o n s p i r e d to violate [the plaintiff’s] constitutional rights.” Id. at *5.

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Moreover, “noth i n g i n the record show[ed] that Wright had any direct, personal involvement in the

. . . investigation.” Id. at 9 n . 6 (citing Thompson v. Steele , 709 F.2d 381, 382 (5th Cir. 1983)). A dditionally, the panel noted that the plaintiff had failed t o offer summary judgment evidence of knowledge or “any [other] municipal liability element.” Id. Nothing about the above analysis necessarily limits i t to the specific facts and circumstances of Winfrey

. Accordingly, because the analysis resolved legal issues that directly parallel those raised in this appeal and addressed much of t h e same evidence, we hold that it fully applies to Appellants’ c laims a g a i n s t Wright, Fort Bend County, the City of Houston, and t he unknown HPD and Fort Bend County employees. We thus affirm the district court’s grant of summary judgment as to those Appellees. B. Winfrey i s distinguishable a s to the claims against St i vers, Anthony, and Chappell. 1. Background on Winfrey In Winfrey , the panel c oncluded that the plaintiff had raised a sufficient factual issue a s to whether the San J acinto County officers h a d “used false information to secur e search and arrest warrants a nd [had] failed t o disclose exculpatory evidence.” 2012 WL 3062159, at * 6

. T h e p a n el noted t hat, “even without r espect to the question of Pikett’s m ethods,” the officers “may h ave acted recklessly in s ubmitting warrant affidavits that c o ntained false statements and material omissions that affected [the plaintiff’s] constitutional rights.” Id. Specifically, the search and a r rest warrant a ffidavits that t h e officers submitted had stated that a “drop-trail” from t h e c r i me scene t o t he plaintiff’s home had used the plaintiff’s scent. Id. However, the record showed t h a t the officers knew a t hird person’s scent had been used b y mistake. See i d. at *7. 6

6 Pik ett w as not res p ons ible f or this m is tak e. See Wi nf rey , 2012 WL 3062159, at *7. 15 Case: 11-20906 Document: 00512166063 Page: 15 Date Filed: 03/06/2013No. 11-20906

Since t h e officers had executed the warrant affidavits t wo years after the droptrail, the panel concluded that “ no time exigency existed t h a t w o uld have explained t he absence of accurate information.” Id. Moreover, the affidavits had reported facts gleaned from an in m a te informant, without disclosing several “major” inconsistencies in the informant’s story. Id. The panel noted that the Fou r th Amendment’s w arrant r equirement “imposes an obligation to set forth particular f acts and cir c u m s t a n c e s u n d erlying the existence of p robable cause, so as to allow the mag i s t r a t e t o make an independent evaluation of the matter.” Id. at *8 (citation and internal quotation marks o mitted). It added that this ob l i g a t i on “extends to providing facts concerning t he reliability of the information and the credibility o f its source and to avoiding deliberately or r ecklessly f alse s tatements.” I

d

. (c it at i o n a n d i n t e r nal quotation marks omitted). The panel o bserved t hat the “warrant affidavits here fail[ed] this standard” because t hey “likely deprived the magistrate of the opportunity to i n d e pendently weigh whether [the officers’] evidence established probable cause.” Id. at *8-9. The panel explained that the rec o r d i n d i c a t ed the officers had “heavily relied on the false d r op-trail representation and incomplete information regarding [the informant].” Id. at *8. Indeed, in one o f the search warrant affidavits, one of the officers had explained that t he evidence from the drop-trail and the evidence from the informant “were the two primary reasons t he officers had enough [probable cause] t o get [the] search warrant.” Id

. (internal quotation marks omitted). For these r easons, the panel c o ncluded that the plaintiff ha d “ m ade a sufficiently substantial preliminary showing to m ake [qualified imm u n i t y]
summary judgment for [the officers] inappropriate a t [that] juncture.” Id. at *9 (internal quotation marks omitted). In reaching this conclusion, the panel noted that t he plaintiff had made a “threshold showing of o bjective unreasonableness.”

16 Case: 11-20906 Document: 00512166063 Page: 16 Date Filed: 03/06/2013No. 11-20906

Id. at *10 (footnote and citati o n omitted). Therefore, the district court should have a llowed the plaintiff “to conduct additional di scovery to determine whether [the officers h a d ] executed a ffidavits w ith at least a reckless disregard for the truth, i. e . , [had] acted objectively u nreasonably.” See id. at *9 (internal quotation marks omitted) (citing United States v. Astroff , 578 F.2d 133, 135-36 (5th Cir. 1978) (en banc)). Ac c o r d ingly, t he panel reversed the district court’s
summary judgment, which the district court h ad granted on t he basis of qualified immunity. Id. at *10. In general, the panel concluded that the district c ourt h ad not abused its discret i o n by denying the plaintiff’s request for supplemental FRCP 56(d) discovery. Id. at *12. However, the panel determined that the distri c t c ourt should have allowed t he plaintiff limited supplemental discovery on the abovediscussed issues. Id. 2. The Parties’ Arguments Concerning the A pplicability of Winfrey a. Appellants In their letter brief, Appellant s do not directly address whether Winfrey i s distinguishable as to the claims a gainst Stivers, Anthony, and Chappell

. However, Appellants note that there is additional evidence in the instant case’s record that raises a f a c t u a l dispute. Appellants’ L etter Br. at 3. N amely, Appellant s c i t e to an affidavit from an assistant district attorney for Harris County, averring that “Pikett’s methodology seemed so b latantly unreliable that [ t h e a t t o r n ey] went s o far a s to send out an a ll-prosecutor email in case an y other similar cases h ad been f iled

. . . based on this type of unreliable evidence.” Id. at 3-4 (citation and internal quotation marks omitted). 7

7 The a s s i s t a n t d i s trict attorney d id not w ork on the ins tant cas e other than as an exp ert w itnes s for Ap p ellants

. T he p arties d is p ute w hether the p ros ecutors w ho did w ork on this cas e received the above- ref erenced em ail p rior to f iling charges

. 17 Case: 11-20906 Document: 00512166063 Page: 17 Date Filed: 03/06/2013No. 11-20906

Additionally, Appellants argue that the Winfrey record on appeal did not include the videotape of the lineup in question. I d. at 4. I n the i nstant case, by contrast, the record o n appeal includes tapes of two of t he lineups—Johnson’s and Bickham’s. Id. Appellants c ontend that the two tapes a re additional “evi d ence supporting a dispute of f act” as to whether S tivers, Anthony, and Chappell actively conspired in or failed to prevent Pikett’s alleged fraud. Id. 8

b. Appellees In response, Appellees note that Winfrey ’s reversal o f s ummary judgment

as to t he San J acinto County officers w as predicated on p ossible constitutional

v i o l a t i o n s “even without respect to the question of Pikett’s methods.” FBC Letter Br. at 4 (emphasis, ci t ation, and internal quotation marks o mitted). In other words, even if Pikett had not c a used the Winfrey plaintif f any constitutional inj u r y, t he San Jacinto C ounty officers h ad done so for independent reasons. Having distinguished Winfrey , Appellees then cite to Scott v. H arris , 550 U.S. 372, 378-81 (2007), for the proposition that “when a videotape i s available, the Court should view the facts in the light depicted by the videotape

. . . rather than by resorting to the differing versions offered by various witnesses so as to create disputed issues o f fact.” FBC L etter B r . a t 4 -5. Moreover, Appellees argue that t he f

act that Anthony and C happe l l videotaped the lineups of Johnson and Bickham demonstrate s t hat the officers “were not trying to hide anything” with respect to the lineups. Hous. Letter Br. at 4. Ap p e l l e e s also contend that, in Winfrey , t he e vi d e n c e c o rr ob o r at i n g P i k e t t ’ s dog-scent lineup i tself—from the drop-trail and f r o m the informant—was

8 While the record on ap p eal d oes not includ e a vid eotap e of Curtis ’s lineup , w e treat the tap es of Johns on’s and B i c k h a m ’ s lineup s as rep res entative of Curtis ’s lineup and , theref ore, as evid ence rep res entative of w h e t h e r S t i vers actively cons p ired in or f ailed to p revent Pik ett’s alleged f raud

. 18 Case: 11-20906 Document: 00512166063 Page: 18 Date Filed: 03/06/2013No. 11-20906

compromised by alleged constitutional violations. FBC Letter B r. at 5. In the instant case, by contrast, independent a nd untainted sou r ces of c o rroboration included, w ith respect to Curtis: (i) his vicinity t o the crime scene; (ii) the crowbar with m arkings matching the T-Mobile s tore’s door, which HPD officers spotted in Curtis’s car and which C urtis s eemingly a ttempted to conceal; (iii) the unopened T-Mobile merchandise in Curtis’s car; and (iv) t he a pparent match of Curtis’s driver’s license photo to the still f rom the surveillance video. Hous. Letter Br. at 4 n.1. 9 W i t h Respect to Johnson and Bickham, s ources of

c orroboration included: (i) the surveillance video o f the gasoline can pu r c h a s e by both men; (ii) the witnesses from the general public who identified Johnson; (iii) a motive on the part of Johnson; and (iv) a false alibi on the part of Johnson. Id. 1 0 Thus, Appellees contend that the instant Appellants cannot show that the HPD’s reliance on Pikett’s lineups caused them any harm “because probable

cause would have existed

. . . with or without Pikett’s evidence.” FBC Letter Br. at 5 (citation omitted). Finally, Appellees note that, in the instant case, Appellants allege t h a t Anthony and Chappell “coerced” Samuels i n to b ecoming “a j a i l h ouse snitch.” Hous. Letter Br. at 4

. Appellees characterize this allegation as made up “out of thin air, w i t h o u t o n e shred of evidence” Id. They contend that F RCP 56(d) discovery based on t his allegation w o u l d have b een inappropriate because “nothing stopped Ap p ellants from contacting [Samuels] or his a ttorney and obtaining a n affidavit or evidence o f any alleged coercion, or from presenting

9 Ad d itional ind e p e n d e nt a n d u nt a i nted s ources of corroboration, not cited in Ap p ellees ’ letter briefs , w ere the incons is tent alibis of Curtis and his p as s enger.

1 0 An ad d itional ind ep end ent and untainted source of corroboration, not c i t e d i n Ap p ellees ’ letter brief s , was the inf

orm ation f

rom Sa m u e l s , w ho id entif ied Bick ham and rep orted Johns on’s conf es s ion. 19 Case: 11-20906 Document: 00512166063 Page: 19 Date Filed: 03/06/2013No. 11-20906

evidence from Johnson himself regarding [Samuels].” Id. Nothing in the record suggests that Appellants did so. 3. Analysis Winfrey is clearly distinguishable as to the claims a g ainst Stivers, Anthony, and Chappell. Unlike in Winfrey , t he i nstant Appellants do not assert constitutional tort claims that are independent of Pikett’s dog-scent lineups. Indeed, Appellants implicitly concede a s much. In their l e tter b rief, they fail to address the W

infreypanel’s “even without respect to [Pikett]” language. Here, unlike in Winfrey , there i s suffici e n t e vidence t o extinguish any genuine dispute as to whether Stivers, Anthony, and Chappell acted objectively

unre a s o n ably by being party to Pikett’s lineups. The collective

r e c o r d

— e n u m e r a t e d i n t h e p r e v i o u s s e c t i o n d i s c u s s i n g Ap p e l l e e s ’ arguments—shows that the officers w ould h ave satisfied the standard for probable cause even without the e vidence from Pikett’s lineups. 1 1 T herefore, the Winfrey panel’s reversal of s u m m a r y j u dgment as to t he San Jacinto County officers was limited to the distinct factual posture of that case. Furthermore, the particular facts of t h is case provide no additional reason to reverse t he district court’s grant of s ummary judgment. The assistant district attorney’s opinion of Pikett’s lineups, while probative, was ju s t th at

—a n o p i nion. Indeed, it is unclear if the actual prosecutor of this case was even aware of the assistant district attorney’s opinion. Finally, as Appellants note, the instant record includes videotapes of two of the lineups, which we have reviewed. Consistent with the Supreme Court’s decision in Scott , we treat those tap e s a s c onclusive as to the facts depicted in

1 1 For clarity, we note that, w hile the m agis trate jud ge initially determ ined that there
w as ins uf

ficient p robable caus e to hold Curtis , the m agis trate jud g e m ad e that d eterm ination bef ore Stivers m atched Curtis ’s driver’s licens e p hoto to the s till f rom the s urveillance vid eo. At that p oint, if n o t earlier, Stivers had s uf f icient p robable caus e to continue inves tigating Curtis “even w ithout res p ect to” Pik ett’s lineup s . 20 Case: 11-20906 Document: 00512166063 Page: 20 Date Filed: 03/06/2013No. 11-20906

them. See 550 U.S. at 378-81. In o t h e r words, we will not recognize a fact d i s p u te s ufficient to overturn the s ummary judgment if the tapes settle that dispute. Here, the t a p e s are not conclusive as to Appellants’ “fraud” allegations. A reasonable jury might or might not find them s uggestive of a fraud b y Pikett, and of a f

ailure to prevent, or of an active participation in, that fraud by Stivers, Anthony, a n d Chappell. Nevertheless, t here is substantial evidence corroborating probable cause. Thus, even if Pikett did mani p u l a t e or misrepresent his results, which is u ncertain, Appellants w ere not incrementally harmed. They could have been arrested, charged, and indicted r egardless. We will not disturb the district c ourt’s summary judgment in such circumstances. 1 2 In sum, Winfrey i s distinguishable as to the claims again s t Stivers, Anthony, and Chappell. Moreover, the unique f acts of this case p rovide no alternative reason to reverse summary judgment or t he district court’s denial of Appellants’ FRCP 56( d) r e qu e s t

. Accordingly, we a ffirm the district c ourt’s grant of summary judgment as to those officers. C. Winfreyis distinguishable as to the claims against Pikett. 1. Background on Winfrey The Winfrey panel conclud e d that the plaintiff h ad raised a sufficient factual issue as to w hether “Pikett [had] cued h is d ogs d uring the scent line-up” in question. 2012 WL 3062159, at *6. It expla i n e d t h a t t h e scent lineup had been videotaped, but that the tape had not been included in the record on appeal. Id. Nevertheless, both parties had offered conflicting i n t e r pretations of the tape’s contents. Id. The plaintiff’s expert had opined t h a t Pikett’s lineup procedures were “more c onsisten t with him using his ability to see inside the cans and identify

1 2 The f act that the of

f icers w illingly p erm itted Pik ett’s lineup s to be of ficially record ed f urther couns els agains t their liability f or f raud , or f

or the f ailure to p revent it. 21 Case: 11-20906 Document: 00512166063 Page: 21 Date Filed: 03/06/2013No. 11-20906

which can contains the target pad t han relying on his dogs to identify the can by odor.” Id. (internal quotation marks omitted). The expert had added that Pikett’s actions “wer e consistent with attempting to induce a behavior, i.e. , cuing, specifically ‘jerking’ o n the dogs’ leashes a nd strategically stopping as he paced down the row of cans.” Id. (internal quotation m arks omitted). Pikett, by contrast, had “denie[d] that he cued the dogs or otherwise used procedures that allowed him to ‘cheat.’” Id. Thus, the p anel on appeal identified “a sufficient issue o f material fact” as to whether “Pikett [had] made knowing efforts to secure a false identification.” Id. (citation and internal quotation m arks omitted). Such efforts woul d h ave “violate[d] clearly e stablished constitutional rights.” Id. (citatio n omitted). Accordingly, the panel reversed the distric t c o u r t’s summary judgment, which the district court had granted on the basis of qualified immunity. I d. In general, the panel concluded that the district c ourt h ad not abused its discretion by denying the plai n t i f f’s request for supplemental FRCP 56(d) discovery. Id. at *12. How e v e r , the p anel determined that the district court should have allowed the plaintiff’s specific request f or a report that Pikett had prepared, in connection with another case, that the plaintiff’s expert had alleged “was a substantially different version of the same report produced in this case.” I d

. T h e panel noted t hat, “[g]iven this potential m aterial discrepancy in a heavily r e lied-upon report and the specificity of [the plaintiff’s] request, the district court should have allowed [t he plaintiff] access t o the document.” Id. 1 3 2. The Parties’ Arguments Concerning the A pplicability of Winfrey a. Appellants

1 3 This rep ort concerned the d rop -trail f rom the crim e s cene. Since the ins tant cas e d id not involve a drop

- trail, the rep ort is inap p licable to the ins tant cas e’s dis p os ition. 22 Case: 11-20906 Document: 00512166063 Page: 22 Date Filed: 03/06/2013No. 11-20906

Appellants argue that “the Winfrey C ourt answered a pure question of law when i t credited c ertain expert reports a nd concluded that they w ere sufficient to c reate a di s p u t e o f fact” as to w hether Pikett had manipulated or misrepresented the results of his lineups. Appellants’ Letter Br. at 2. “Because t h a t v e ry same issue is now b efore this C ourt in a virtually identical fact pattern,” this Court should rule the same way as to that legal question. Id.

b. Appellees In response, Appellees argue that “ Winfrey reverse[d] the district court’s g r a n t of summary judgment

. . . based upon a narrow evidentiary ruling , ” namely that “the video [was] not in the r ecord on appeal.” FBC Letter Br. at 4 (citation and i nternal quota t ion marks omitted). I n the instant case, by contrast, the record on appeal includes videotapes of two of the lineups in question. I d. Appellees a lso repeat the same arguments, provided above in t he previous section, c oncerning i ndependent corroborating evidence: namely, that Pikett’s lineups did not c ause Appellants any harm “because probable cause would have existed . . . with or without Pikett’s evidence.” Id. at 5 (citation omitted). 3. Analysis Here, Winfrey again is distinguishable. In W infrey , the p laintiff’s expert submitted a r eport documenting h is review of the dog-scent lineup at issue, which had been videotaped. The tape itself was not in the record o n appeal. In the instant case, the same exp e r t i s p articipating o n behalf of Appellants. How e v e r, unlike in Winfrey , tapes of two of the lineups are i n the record on appeal, and t he expert has not reviewed them. The Winfrey panel’s reversal of

sum m a r y judgment as t o Pikett, for narrow evidentiary reasons, is distinguishable on that basis alone. Furthermore, the pa rti c u l a r f a c t s o f th i s c a s e p r o vi de no alternative reason to reverse the district court’s grant o f summary judgment. Here, in c ontrast to Winfrey , there is i ndependent and untainted evidence—r e c i t ed in detail

23 Case: 11-20906 Document: 00512166063 Page: 23 Date Filed: 03/06/2013No. 11-20906

above—corroborating the results of Pikett’s l i n e u ps. I n light of that evidence, t h e t a p es alone do not create a genuine issue of fact s u fficient to overtur n summary judgment. In sum, Winfrey is distinguisha b l e a s to t he claims against Pikett. Moreover, the unique facts of this case provide no alternative reason to reverse summary judgment o r the district c o u r t ’ s denial of Appellants’ FRCP 56(d) request. Accordingly, we affirm the district court’s grant of summary judgment as to Pikett. VI. Conclusion For the foregoing reasons, we AFFIRM the district court’s grant of summary judgment as to all Appellees.

24 Case: 11-20906 Document: 00512166063 Page: 24 Date Filed: 03/06/2013