* Pursuant to 5th Cir. R. 47.5, th e court has determ ined that this opinio n should not be published and is not precedent except under the limited circumstances set forth in 5th Cir. R. 47.5.4.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 August 30, 2006 Charles R. Fulbruge III Clerk IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 05-20667 Summary Calendar

KELLI BARRETT FITCH; ET AL., Pl aint iffs, KELLI BARRETT FITCH, Pl aint iff – Appellant

.

versus NORMAN D. MORROW, Defendant – Appellee. Appeal from the United States District Court fo r the Southern District of Texas (4:03-CV-1686)

Before GARZA, STEWART and DENNIS, Circuit Judges. CARL E. STEWART, Circuit Judge: * Pl aint iff- Appellant Kelli Barrett Fit ch (“Fit ch”) appeals the district court’s grant of DefendantAppellee Normand D. Morrow’s (“Morrow”) mo tion fo r summary judgment. Additionally, she requests th at this court overrule it s well-established “break in the causal chain” doctrine and1 The underlying warrant arose from activit ies surr ounding the rental of a self-storage facility.

Jesse Salazar rented a self-service storage unit in Houston, Texas, and listed “Kelly Barrett” as his alt ernate contact and co-renter on th e face of the storage facilit y contract. Thereafter, the manager of th e facilit y began noticing th at Salazar and Barrett were acting suspiciously. Aft er several tenants’ it ems were stolen from numerous storage units, the manager contacted the Harris County Sheriff’s Departm ent fo r assistance. Based on interviews with the storage facility manager and a renter whose storage unit had been broken int o and his items taken, Morrow searched via a Harris County com puter search engine fo r mat ches in the Houston area fo r persons of the same name th at mat ched Salazar and Barrett’s physical descriptions, addresses, age, etc. Morrow’s research led him to believe th at Kelly Barrett was actually Kelli Renee Barrett (Fitch), even though the names were spelled differently. Eventually, Morrow signed a probable cause affidavit fo r her arrest and delivered it to th e Harris County District At torney ’s of fice fo r further processing. Fit ch was arrested on May 1, 2001; however, it was lat er dete rmined that she was not the sam e person listed on the rental agreement and, thus, she was released from jail. All o f t he records relat ing to Fitch’s arrest and prosecution for the th eft of fenses were expunged and destroyed. Morrow has testified t hat he did not prepare th e arrest warrant, meet wit h the magistrate judge th at eventually signed th e arrest warrant fo r Fit ch, or personally arrest Fit ch. Morrow al so testified t hat he had no reason to believe th at Kelly Barrett and Kelli Renee Barrett (Fitch) were not the same person. 2 ult imat ely determ

ine th at Morrow was not entitled to qualified immunit y. We decline t o do s o; th erefore, we affirm the judgment of the district court.

FACTUAL AND PROCEDURAL BACKGROUND Fit ch and her husband initially brought suit under 42 U.S.C. § 1983 in state district court in Harris County , Texas, on April 19, 2002, claiming th at an arrest warrant applied fo r by Morrow and issued fo r Fit ch failed to particularly describe the person fo r whom probable cause existed, as required by th e Particularity Clause of th e Fourth Amendment to the Unit ed States Constitution. U.S. Const. amend. IV. They alleged negligence and slander claims arising out of her arrest based on mistaken identity. The suit was originally filed against PS Texas Holdings, LTD (d/b/a Public Storage), but Morrow was added in Fitch’s second amended petition on January 16, 2003. 1 The arrest warrant in question identified the subject as “Kelli Renee Barrett” (Fitch) of Katy, Texas; however, th e warrant should have been issued fo r another party , “Kelly Barrett.” Therefore,3

Fit ch states th at Morrow’s arbitrary selection of her as the int ended target of the arrest warrant was objectively unreasonable in light of the information readily available to him. Morrow removed th e case to federal court on May 19, 2003, and subsequently filed a mo tion to dismiss. The district court granted the motion to dismiss reasoning that, assuming arguendo that Fit ch’s Fourth Amendment rights had been violated by an invalid arrest warrant for which Morrow had applied, Morrow was entitled to qualified immunit y under current Fifth Circuit case law. Specifically, th e district court stated th at, “Plaint if fs have not alleged that Morrow intentionally wit hheld or misrepresented any info rmation in his sworn application fo r warrant . . . . [they ] clearly alleged only th at Morrow was negligent . . . . [t]herefore, Pl aint iff’s co mplaint shows on its face that it is barred.” On February 20, 2004, Fit ch mo ved fo r reconsideration of the di strict court’s order, requesting th at it review it s holding th at the issuance of a warr ant by a neutral and detached magistrate breaks th e causal chain between an of ficer’s application and a suspect’s arrest. On the

same day, Fit ch also filed a thir d amended com plaint , om it ting her husband as a party , relinquishing her state law claims, and alleging “constitutional” claims sounding in negligence. The district court responded, denying Fit ch’s request to hold the “break in the causal chain” theory unlawful; however, it fo und that the third amended complaint successfully stated a cause of action. On December 7, 2004, Morrow filed a mo tion fo r summary judgme n t, stating th at his subjective good fait h, both independently and in conjunction wit h the magistrate judge’s decision to issue the warrant for Fitch’s arrest, broke the casual chain and protected him fr om liabilit y under § 1983. The district court issued it s final judgment on August 1, 2005, finding th at no genuine issue of

mat erial fact existed regarding th e info rmation Morrow provided to the magistrate judge who issued4

th e warrant for Fitch’s arrest. It also held that Fitch did not provide sufficient evidence to indicate th at Morrow taint ed th e magistrate judge’s decision to sign the warrant. From the district court’s judgment, Fitch appeals. DISCUSSION A. Standard of Review This court reviews a grant of summary judgment de novo, viewing the facts in the light mo st favorable to th e non-movant. F reeman v. County of Bexar , 210 F.3d 550, 553 (5th Cir. 2000). S ummary judgment is appropriate when the pleadings, depositions, answers to interrogatories, admissions and/or affidavits show that there is no genuine issue of material fact. Fed. R. Civ. P. 56(c). A genuine issue of material fact exists “if the evidence is such that a reasonable jury co uld return a verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc. , 477 U.S. 242 (1986). In th e absence of a genuine issue of mat erial fact, the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c). B. Qualified Immunit y and Clearly Established Law Fit ch argues th at this circuit’s “break in th e causal chain” doctrine is inconsistent with the element of causation enacted by Congress under § 1983 and Supreme Court precedent. This court has held that “an of

ficer who acted wit h malice in procuring the warrant or the indictment will not be liable if th e facts supporting th e warrant or indictment are put bef ore an impartial intermediary such as a magistrate or a grand jury, for that intermediary’s independent decision breaks the causal chain and insulat es th e init iat ing party .” H and v. Gary , 838 F.2d 1420, 1427 (5th Cir.1988) (int ernal quotations om

it ted). Accordingly, because Fit ch asserts th at the doctrine should be invalidated, in2 We do not consider Fit ch’s concise and conclusory statem ent in her brief regarding summary judg ment because she did not reference specific facts in the summary judgment record which demonstrate a genuine issue of mat erial fact. She does not discuss the summary judgment issue in th e body of her argument nor does she offer evidence to support a finding th at summary judgment was improperly granted. Because she has failed to adequately raise or brief any claimed genuine issue of mat erial fact, she has essentially abandoned this issue on appeal and waived this panel’s review of th e district court’s grant of summary judgment in favor of Morrow. See Fed. R. App. P. 28(a)(9). 5 turn , she asserts that Morrow is not entitled to be shielded by qualified immunity. She also conclusively states that summary judgment 2 was inappropriate in this case. Morrow’s conduct, however, is shielded by qualified immunit y in light of clearly established law. Saucier v. Katz , 533 U.S. 194, 210-11 (2001). The clearly established law relied upon in applying th e qualified immunit y claim in this case is the “break in the causal chain” doctrine. Therefore, we must determ ine whether, “[t]aken in the light mo st favorable to the party asserting the injury, . . . the facts alleged show th e of ficer’s conduct vio lat ed a constitutional right.” Id. at 201. Measuring the objective reasonableness of Morrow’s conduct in reference to the law regarding the “break in th e causal chain” doctrine th at clearly existed at the time of the conduct in question, we hold th at in this case, Morrow’s conduct was objectively reasonable; his conduct did not violate Fitch’s constitutional rights. Under th e “break in th e causal chain” doctrine, once “facts supporting an arrest are placed before an independent int ermediary such as a magistrate or grand jury, the int ermediary’s decision breaks th e chain of causation for false arrest, insulat ing the init iat ing party .” Taylor v. Gregg , 36 F.3d 453, 456 (5th Cir. 1996) (int ernal citations omitted). The causal chain is not broken, however, “if th e plaint iff affirmat ively shows th at ‘the del iberations of that intermediary were in some way taint ed by th e actions of th e defendants.’” Shields v. Tw iss , 389 F.3d 142, 150 (5th Cir. 2004) (citing Taylo r, 36 F.3d at 456.). The “break in the causal chain” doct ri ne is “firmly ensconced circuit6

precedent” th at existed in 2000 when Morrow signed the probable cause affidavit and delivered the fruits of his invest igation to th e Harris County District At torney ’s of fice. This panel is bound by the holdings of prior p anels of thi s circuit, including their decisions detailing the impact and law surrounding this doctrine. Therefore, because we continue to recognize the “break in the causal chain” doctrine, we affirm the district court’s decision to apply the qualified immunity doctrine. CONCLUSION For the foregoing reasons, the judgment of the district court is AFFIRMED.