IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 16-40399

Summary Calendar

DOCTOR GLEN W. HURLSTON,

Plaintiff - Appellant

v.

CITY OF PRINCETON, TEXAS; JEFFERY BARNETT; ROBERT 

MITCHNIK; CITY OF KYLE, TEXAS,

Defendants - Appellees

Appeal from the United States District Court 

for the Eastern District of Texas

USDC No. 4:13-CV-757

Before BENAVIDES, PRADO, and COSTA, Circuit Judges.

PER CURIAM:*

This is an appeal from the grant of summary judgment in favor of the 

Appellees, the City of Princeton, Texas, the City of Kyle, Texas, Kyle Police 

Chief Jeffery Barnett (“Barnett”), and Princeton Police Officer Robert Mitchnik 

(“Mitchnik”). Appellant Doctor Glen W. Hurlston (“Hurlston”) brought this 42 

U.S.C. § 1983 suit against the Appellees, alleging that Barnett and Mitchnik 

 

* 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 circumstances set forth in 5TH 

CIR. R. 47.5.4.

United States Court of Appeals

Fifth Circuit

FILED

November 29, 2016

Lyle W. Cayce

Clerk

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conspired to violate his federal constitutional rights, that there was a pattern 

or practice of harassment against him, and that the cities failed to train or 

supervise their officers. Finding no reversible error, we AFFIRM the district 

court’s grant of summary judgment in favor of the Appellees.

I. BACKGROUND

The evidence demonstrates that Hurlston and Suzanne Besse began 

dating in early 2006. Later that year, Besse began a physical relationship with 

Barnett. At that time, Barnett was the Chief of the Princeton Police 

Department. In 2007, Hurlston and Besse (“Ms. Hurlston”) were married and 

had a residence in Princeton, Texas. In March of 2011, Ms. Hurlston gave birth 

to Barnett’s son while she was still married to Hurlston. In May of 2011, 

Barnett moved from Princeton, Texas, to Kyle, Texas, and became the Kyle 

Chief of Police. 

On January 1, 2012, Ms. Hurlston called the Princeton Police 

Department, claiming that Hurlston had choked her. Officers Joe Pell and 

Wayne Clark responded to the domestic disturbance call at the Hurlston’s 

residence and observed marks on Ms. Hurlston’s neck. The officers arrested 

Hurlston, and he was charged with Assault Family Violence. The next day, a 

magistrate issued an emergency protection order, which prohibited Hurlston 

from communicating with Ms. Hurlston for 61 days. On January 29, Ms. 

Hurlston contacted the police, complaining that Hurlston had violated the 

protective order by calling her 20 times and sending texts approximately 50 

times. 

With respect to the alleged choking incident, a Collin County grand jury 

indicted Hurlston with the third degree felony offense of Assault Family 

Violence on March 6, 2012. On April 26, Officer Pannell executed a probable 

cause affidavit stating that on January 29, Hurlston had violated the terms of 

a court protective order by contacting Ms. Hurlston. On May 16, the Collin 

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County District Attorney filed an Information charging that Hurlston had 

violated the terms of a protective order by contacting Ms. Hurlston in a 

threatening and harassing manner. On June 1, the Collin County Clerk issued 

a warrant for Hurlston’s arrest in connection with the charge of violating the 

court’s protective order. 

After Hurlston learned there was a warrant for his arrest, he 

surrendered to the Collin County authorities on June 19, and made bond. On 

January 22, 2013, Hurlston pleaded no contest to the lesser included 

misdemeanor offense of Assault. The plea agreement provided for 2 years of 

deferred community supervision, a $500 fine and 40 hours of community 

service. In addition, the charge of violating the court’s protective order was 

dismissed.

Meanwhile, in August of 2012, on two occasions, an emergency 9-1-1 call 

was made from the Hurlston residence. Both times Princeton police officers 

responded to the domestic disturbance call, and the officers were able to diffuse 

the situation without making an arrest. Mitchnik was one of the police officers 

who responded to both calls.

Hurlston brought suit against Barnett, Mitchnik, the City of Kyle, and 

the City of Princeton, alleging constitutional violations pursuant to 42 U.S.C. 

§ 1983. Hurlston claimed that the defendants violated his First Amendment 

right of free speech, his Fourth and Fifth Amendment right to life and liberty, 

and his Fourteenth Amendment right to equal protection under the law. 

Counsel for Barnett and Mitchnik filed a motion for summary judgment and 

counsel for the cities of Princeton and Kyle filed a separate motion for summary 

judgment. In two reports, the magistrate judge recommended that the motions 

be granted. Hurlston filed objections to the report and recommendation issued 

with respect to Barnett and Mitchnik’s motion for summary judgment. The 

district court adopted the magistrate’s recommendation to grant the motions 

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for summary judgment and entered final judgment against Hurlston. Hurlston 

now appeals.

II. ANALYSIS

A. Standard of Review

This Court reviews a district court’s ruling on a motion for summary 

judgment de novo, “viewing all evidence in the light most favorable to the 

nonmoving party and drawing all reasonable inferences in that party’s favor.” 

In re Katrina Canal Breaches Litig., 495 F.3d 191, 205–06 (5th Cir. 2007). The 

moving party is entitled to summary judgment if it “shows that there is no 

genuine dispute as to any material fact and the movant is entitled to judgment 

as a matter of law.” Fed. R. Civ. P. 56(a).

B. Challenge to Exclusion of Evidence

Hurlston contends that the district court “expressly disregarded” 

evidence that created a genuine issue of material fact with respect to the 

alleged conspiracy that existed between Barnett, Mitchnik and other officers 

in the Princeton and Kyle police departments. In the report and 

recommendation, the magistrate judge noted that the defendants had objected 

to “certain deposition testimony of Plaintiff, the deposition testimony of Chad 

Wilhelm, and the affidavit of Gabriel Brow as hearsay evidence.” The 

magistrate judge ruled that the defendants’ objections were “denied as moot 

because the Court did not rely upon the objected-to-evidence in making its 

decision on the Summary Judgment Motion.” As such, the magistrate judge 

treated the evidence as inadmissible. Hurlston objected to the magistrate 

judge’s failure to consider this evidence, and the district court reviewed the 

objection de novo.

The district court sustained the defendants’ objection to the affidavit of 

Gabriel Brow, ruling that it constituted hearsay. However, the district court 

overruled the defendants’ objections to the other evidence and considered that 

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evidence in determining that there was no genuine issue of material fact with

respect to Hurlston’s constitutional claims. Accordingly, the only evidence that 

the district court found inadmissible is the affidavit of Gabriel Brow. 

Hurlston contends that the district court erred in excluding the affidavit 

of Gabriel Brow because it does not constitute hearsay. We review the district 

court’s evidentiary rulings for abuse of discretion. Curtis v. M & S Petroleum, 

Inc., 174 F.3d 661, 667 (5th Cir. 1999). In the affidavit, Gabriel Brow states 

that in 2013, Ms. Hurlston told him “that she conspired with Jeffery Barnett 

in 2011 and 2012 so that Jeffery Barnett would use his influence as the former 

police chief of the City of Princeton, Texas and the (then) current police chief 

of the City of Kyle, Texas to have Glen Hurlston charged with a felony and 

thrown into prison so that [she] and Jeffery would be able to take Glen’s 

money.”

Hurlston argues that the affidavit is not hearsay because it is an 

admission offered against an opposing party within the meaning of Rule 

801(d)(2) of the Federal Rules of Evidence. Rule 801(d)(2) does provide that 

when an opposing party’s statement is offered against that party, it is not 

hearsay if certain conditions are met. However, Ms. Hurlston is not a party to 

this lawsuit and thus, the statements attributed to her in the affidavit are by 

definition not an admission by a party opponent. Cf. United States v. Anderton, 

679 F.2d 1199, 1202–03 (5th Cir. 1982) (explaining that Rule 801(d)(2) “applies 

only to the admission of a statement against a party”) (emphasis added). 

Hurlston has not shown that the district court abused its discretion in 

excluding the affidavit.1

 

1 Rule 801(d)(2)(E) also provides that a statement “made by the party’s coconspirator 

during and in furtherance of the conspiracy” does not constitute hearsay. Assuming 

arguendo for the purpose of this issue that Ms. Hurlston was a coconspirator with a party to 

this suit, the affidavit explicitly states that her admissions to Brow were made in 2013 and 

that she had previously conspired with Barnett in 2011 and 2012. Therefore, the statements 

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C. Qualified Immunity

Hurlston contends that the district court erred in granting Barnett and 

Mitchnik summary judgment based on the defense of qualified immunity. “To 

determine whether a defendant is entitled to qualified immunity, this Court 

engages in a two-pronged analysis, inquiring (1) whether the plaintiff has 

alleged a violation of a constitutional right and, if so, (2) whether the 

defendant’s behavior was objectively reasonable under clearly established law 

at the time the conduct occurred.” Hampton v. Oktibbeha Cnty. Sheriff Dep't, 

480 F.3d 358, 363 (5th Cir. 2007) (citing Easter v. Powell, 467 F.3d 459, 462 

(5th Cir. 2006)). “If the plaintiff fails to state a constitutional claim or if the 

defendant’s conduct was objectively reasonable under clearly established law, 

then the government official is entitled to qualified immunity.” Id. (citing 

Easter, 467 F.3d at 462). “Qualified immunity gives government officials 

breathing room to make reasonable but mistaken judgments,” and “protects all 

but the plainly incompetent or those who knowingly violate the law.” Ashcroft 

v. al-Kidd, 563 U.S. 732, 743 (2011) (internal quotation marks and citation 

omitted). “Once a defendant invokes qualified immunity, the burden shifts to 

the plaintiff to show that the defense is not available.” Kovacic v. Villarreal, 

628 F.3d 209, 211 (5th Cir. 2010).

1. Barnett

Hurlston contends that Barnett used the position as Police Chief to 

harass him and have him arrested. However, the evidence does not raise a 

genuine issue of material fact with respect to Barnett’s using his state 

authority to have Hurlston harassed and arrested. 

 

were not made “during and in furtherance of the conspiracy;” but instead were made after 

the alleged conspiracy. Rule 801(d)(2)(E) does not apply to the affidavit. 

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a. Arrest for Violating Protective Court Order

Hurlston’s affidavit states that during the “last week of May 2012, I 

called Barnett at work and told his secretary that I am coming to the next Kyle 

city council meeting on June 5, 2012 to expose him (Barnett) to the council.” 

Hurlston contends that after he called Barnett, “Barnett scrambled to have a 

warrant issued” for his arrest before the council meeting to be held on June 5. 

To support this contention, Hurlston states that “no action was taken on Ms. 

Hurlston’s complaint until” he made the phone call to Barnett. Hurlston is 

mistaken. 

After Ms. Hurlston made her complaint that Hurlston had violated the 

court protective order, and prior to Hurlston’s call to Barnett, law enforcement 

officials did take action. As set forth previously, on April 26, Officer Pannell 

executed a probable cause affidavit stating that on January 29, Hurlston had 

violated the terms of a court protective order by contacting Ms. Hurlston.2 On 

May 16, the Collin County District Attorney filed an Information charging that 

Hurlston had violated the terms of a protective order by contacting Ms. 

Hurlston in a threatening and harassing manner. Thus, contrary to Hurlston’s 

contention, the case against him was moving through the system prior to his 

call to Barnett. Hurlston points to no evidence that raises a fact issue with 

respect to whether Barnett used his position with the Kyle Police Department 

to have the Collin County District Attorney issue an arrest warrant for his 

violating the protective order.3 

 

2 Hurlston refers to the protection order as “long-expired.” While the protection order 

was valid for only 61 days, Ms. Hurlston’s complaint that he violated it was made within the 

61-day period.

3 Moreover, the sequence of events does not support Hurlston’s contention that 

Barnett had a warrant issued in order to have him arrested before the Kyle City Council 

meeting. The Collin County arrest warrant was issued on June 1, and the Kyle City Council 

meeting was scheduled for June 5. Barnett did not surrender to the Collin County Sheriff’s 

Department until June 19, which was after the scheduled meeting. 

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b. Investigate Report Ordered

Hurlston further contends that “at Barnett’s behest, on May 30, 2012, 

the Texas Department of Public Safety, Intelligence and Counterterrorism 

Division, produced a ‘Threat to a Peace Officer Investigation’ report on 

Hurlston.” The report was admitted in the record, and it provides that the 

name of the person who requested the report is Texas Ranger Jimmy 

Schroeder. Although Hurlston speculates that Barnett requested the report, 

he points to no evidence that Barnett did so. 

c. Hurlston’s Testimony

Hurlston also points to his deposition testimony that Ms. Hurlston had 

admitted to him that she and Barnett were involved in a “setup” to have him 

arrested and take his money. Of course, Hurlston’s testimony with respect to 

Ms. Hurlston’s statements to him constitute hearsay and thus do not constitute 

competent summary judgment evidence. See Warfield v. Byron, 436 F.3d 551, 

559 (5th Cir. 2006) (explaining that hearsay is inadmissible for summary 

judgment purposes under Federal Rule of Civil Procedure 56). Thus, like 

Brow’s affidavit, this evidence is hearsay and may not be considered because 

it is not competent summary judgment evidence.

d. Assault Incident

Hurlston contends that Barnett conspired with Mitchnik and others to 

have him arrested for the assault/choking incident on January 1, 2012, in 

Princeton. However, neither Barnett nor Mitchnik were present at that arrest. 

Indeed, Barnett was the Chief of the Kyle Police Department when the 

Princeton Police Officers arrested Hurlston after Ms. Hurlston called 9-1-1, 

stating that Hurlston had choked her.

Hurlston points to the emails between Barnett and Ms. Hurlston as 

evidence of a conspiracy against him. In an email sent the day after the 

choking incident, Ms. Hurlston tells Barnett that she called the police when 

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Hurlston attacked her. In her email to Barnett, Ms. Hurlston stated that she 

thought she should tell Barnett because “you got mad the last time I called the 

cops on [Hurlston] and didn’t tell you.” This private email between Barnett 

and Ms. Hurlston indicates that Barnett had no prior knowledge of any plan 

to call the police and have Hurlston arrested.

Hurlston also points to the email conversation in which Barnett is 

offering her some advice about making sure her phone does not have anything 

“negative” on it such as “phone numbers, pictures, messages, skype info email 

account info” before the attorneys become involved. Barnett is apparently 

advising her to get rid of any evidence of their affair prior to the 

commencement of her divorce proceedings. However, a police officer’s private 

acts that are not advanced by his state authority, are not acts under color of 

state law. Cf. Delcambre v. Delcambre, 635 F.2d 407, 408 (5th Cir. 1981) 

(holding that a police chief was not acting under color of state law despite the 

fact that he was at work at the police station when he assaulted his sister-inlaw over personal arguments about family issues). Although Barnett advised 

Ms. Hurlston about covering up evidence of their affair, this was a private act, 

and the evidence does not show that it was connected to his authority as the 

Kyle Police Chief. 

Hurlston also points to emails that discuss the Hurlstons’ bank account. 

Ms. Hurlston stated that she was going to try to obtain as much cash from the 

account as she could. Barnett’s only reference to money is when he asks about

her attorney for the divorce proceedings. Barnett asked if she was going to 

employ the same attorney as the one she used in the child custody proceedings 

and then stated that he thought the attorney “will say either take half of the 

cash . . . or keep receipts to show it was used for child care . . . spousal support 

. . . during this time . . . not fun and partying as his attorney will likely say.” 

(ellipses in original). Here, Barnett is stating what he thinks her divorce 

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attorney will advise her to do with respect to the money in the bank account. 

Again, there is no indication that Barnett is acting in his capacity as a state 

officer. 

In sum, by the time of Hurlston’s arrests, Barnett had moved from

Princeton to Kyle, and was not present at either arrest. Although it is 

undisputed that Barnett had an affair with Hurlston’s wife and such evidence 

provides a motive to harm Hurlston, Hurlston relies on speculation and 

innuendo but no competent summary judgment evidence that creates a 

material fact issue suggesting that Barnett used his job to harass Hurlston.

2. Mitchnik

Hurlston also contends that the district court erred in granting summary 

judgment in favor of Mitchnik. Hurlston argues that “[t]here are genuine 

disputes as to material facts about whether Mitchnik engaged in a conspiracy 

with Barnett to harass and persecute” him. 

Hurlston points to two occasions in August of 2013 when Princeton Police 

Officers responded to 9-1-1 emergency calls made from the Hurlston residence. 

On one occasion, Hurlston was the one who called the police, and on the other

occasion, Ms. Hurlston made the emergency call. Mitchnik was one of several 

officers that responded on both of those occasions. No one was arrested during 

either incident.

Hurlston complains that during one of these incidents Mitchnik said “I 

can arrest you for illegally recording this conversation.” Hurlston also 

complains that Mitchnik partially blocked Hurlston’s access to his home and 

daughter during one of these incidents. Because we review the record in the 

light most favorable to the non-movant, we assume that Hurlston’s factual 

allegations are true. However, “[t]o establish a cause of action based on 

conspiracy a plaintiff must show that the defendants agreed to commit an 

illegal act.” Arsenaux v. Roberts, 726 F.2d 1022, 1024 (5th Cir. 1982). As set 

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forth above, there is no evidence creating a fact issue with respect to Barnett 

using his office to harass Hurlston. Black’s Law Dictionary defines 

“conspiracy” as “[a]n agreement by two or more persons to commit an unlawful 

act, coupled with an intent to achieve the agreement’s objective, and (in most 

states) action or conduct that furthers the agreement; a combination for an 

unlawful purpose.” Conspiracy, Black’s Law Dictionary (10th ed. 2014). 

Hurlston’s claim of conspiracy fails because there is no evidence that Barnett 

conspired with Mitchnik. Mitchnik cannot conspire with himself. Accordingly, 

because no fact-finder could reasonably infer from this record that Barnett and 

Mitchnik conspired to violate Hurlston’s constitutional rights, the district 

court properly granted summary judgment in favor of Mitchnik.

D. City of Princeton and City of Kyle

As set forth above, Hurlston has not raised a fact issue with respect to 

the claim that Barnett and Mitchnik conspired to violate Hurlston’s 

constitutional rights. Hurlston therefore cannot maintain a section 1983 claim 

against the cities. See, e.g., Bustos v. Martini Club, Inc., 599 F.3d 458, 467 (5th 

Cir. 2010) (explaining that a municipality cannot be held liable under section 

1983 if no constitutional violation has been committed by a municipal actor).4 

III. CONCLUSION

For the foregoing reasons, the district court’s judgment is AFFIRMED.

 

4 Hurlston contends that the magistrate judge should not have referred to his plea of 

nolo contendere (no contest) to the misdemeanor assault charge because it is inadmissible 

under Federal Rule of Evidence 410. Although the magistrate judge did refer to Hurlston’s 

no contest plea in the background section of the report and recommendation, Hurlston did 

not make this objection to the district court. In any event, we need not tarry here any longer. 

Assuming arguendo that evidence of the plea was inadmissible, we have reviewed the 

summary judgment record de novo and find no error, plain or otherwise, in the district court’s 

grant of summary judgment based on the admissible evidence in the record.

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