1

There is some confusion as to whether Mullins’s complaint

asserts claims against Crouch in his individual or official

capacity. It is clear, however, from Mullins’s response to

Crouch’s motion that she intended her complaint to assert claims

against him in his individual capacity. See Pl.’s Resp. at 2. 

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IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS

FORT WORTH DIVISION

MICHELLE LEE MULLINS §

§

VS. § ACTION NO. 4:04-CV-477-Y

§

JAMES R. CROUCH §

ORDER GRANTING MOTION FOR JUDGMENT ON THE PLEADINGS

Pending before the Court is Defendant’s Motion for Judgment on

the Pleadings. After consideration of all the documents filed

regarding the motion and the applicable law, the Court concludes that

the motion should be granted. 

I. Facts

Plaintiff Michelle Lee Mullins (“Mullins”) brings this suit under

42 U.S.C. § 1983 against defendant James R. Crouch (“Crouch”), a

police officer with the city of Arlington, Texas, in his individual

capacity.1 Plaintiff alleges that Crouch violated her constitutional

rights by knowingly lying in affidavits supporting an arrest warrant

against Mullins and a search warrant for her residence. Mullins also

asserts various state-law claims against Crouch.

Crouch’s affidavit in support of the search warrant accuses

Mullins of engaging in theft by deception based upon the following

facts:

July 29, 2001, Sgt. Crouch received an e-mail from Mr. Mike

 

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Molnar in Vernon British Columbia, Canada, who stated that

he felt that his mother, Cheryl Eckstein, was the victim

of a possible on going [sic] scam. He stated that the

person or persons perpetuating this scheme lived in

Arlington. I called Mr. Molnar and he stated that he would

send me copies of the e-mails that had been sent to his

mother. The e-mails stated that a girl by the name of

Alexis Marquis was the victim of incest and had a 3 month

old child, Zachary. Pictures and story are posted on a

legitimate web site, STIGMA, created for support of females

that have been the victim of abuse, rape and incest.

A second complaint was received on the same day from Trudy

Fuller of Corvallis, Oregon stating the same details. 

The first correspondence was on or about June 21, 2001 with

Cheryl Eckstein at The Compassionate Healthcare Network

(CHN) in Surrey, British Columbia, Canada.

By July 8, 2001, [Alexis Marquis] had “moved in” with her

sister in law, Michelle Mull[i]ns.

By July 20, 2001, Alexis stated that her and Michelle were

going to move into a house on 10 acres, so the kids would

have plenty of room, and gave the new address as 4621 S.

Cooper Street #131-121.

This address is one of a mail box drop and her box number

is #121, registered to Michelle Mullins with a home address

of 829 Embercrest Dr., Arlington, Texas and was rented on

July 20, 2001

Alexis enters Arlington Memorial Hospital and passes away

on July 24, 2001

There is no record at Arlington Memorial Hospital or the

Tarrant County Medical Examiners Office relating to death

or existence of anyone named Alexis Marquis.

At this point, Michelle takes over the communications and

a trust fund is set up for the baby Zachary, who she wants

to adopt. Michelle explains that there was no posting in

the newspapers or obituary concerning the death of Alexis

Marquis because she was a private person and her wishes

were honored by keeping her death qui[et]. Michelle

describes the house that she occupies at 4621 So. Cooper

#131-121 and keeps people updated as to the construction

on a play area for the kids.

During the first part of August, Michelle starts feeling

bad and has an MRI done and she informs people that the

 

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results are not good and asks for their prayers.

Suspect has received gifts and unknown amount of monies

from various locations for the support of her and baby

Zachary, and a trust fund has been set up for future

support. E-mail sites ask that gifts or donations be sent

to Michelle at 4621 S. Cooper #131-121.

Extensive investigations ha[ve] indicated that the persons

held forth as Alexis Marquis with a birth date of April

1, 1986 is an identity created in order to perpetuate the

fraud on unsuspecting innocent parties, designed to extract

monies and gifts intended for their own use.

(Pl.’s Reply to Def.’s Original Answer, Ex. A.) Crouch’s affidavit

in support of the arrest warrant is virtually identical, but includes

the following additional averments: (1) that the alleged MRI of

Mullins was a fabrication; (2) that during the execution of the search

warrant, Mullins was interviewed and admitted that she made up the

entire story and had never been sick; (3) that the clothing and book

that Eckstein had sent to Mullins was recovered at Mullins’s home;

and(4) that Eckstein spent approximately $133.42 in Canadian funds

on these gifts. (Pl.’s Reply to Def.’s Original Answer, Ex. B at

2-3.)

Mullins’s complaint alleges that the warrants contain false

information because she never “set up a trust fund for the purpose

of committing theft from Ms. Eckstein,” and that prior to “Crouch

obtaining the warrant[s], Mrs. Eckstein had informed him that

[Mullins] had never solicited any gifts or monies from her.” (Pl.’s

Compl. at 3, ¶ 9.) Mullins also contends that Crouch “knew at the

time the warrants were obtained [Mullins] had only received

unsolicited items from Ms. Eckstein consisting of some baby clothes

and a book.” (Pl.’s Reply at 3.)

 

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2

Although not entirely clear, it appears that this

allegation is intended to be a complaint about the fact that

Mullins’s “computer, peripherals and software” were seized during

the search of her home and allegedly never returned. (Pl.’s

Compl. at 3, ¶ 9.)

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Mullins’s complaint contends that Crouch has violated her

constitutional rights. She does not identify the specific

constitutional provision she claims was violated, but instead contends

that she was denied her “clearly established rights under the United

States Constitution to: (A) Freedom from unreasonable seizure of [her]

person; (B) Freedom from deprivation of liberty and property without

due process;[2 and] (C) Freedom from unreasonable searches and

seizures.” (Pl.’s Compl. at 4, ¶ 14.) Crouch’s motion seeks judgment

on the pleadings.

II. Standard

A. Judgment on the Pleadings

Rule 12(c) states that “[a]fter the pleadings are closed but

within such time as not to delay the trial, any party may move for

judgment on the pleadings.” FED. R. CIV. P. 12(c). “A [r]ule 12(c)

motion for judgment on the pleadings is designed to provide a means

for disposing of cases when the material facts are not in dispute

and a judgment on the merits can be attained by reference to the

pleadings and to any facts of which the court may take judicial

notice.” Chalmers v. Wilhelm, No. 3:01-CV-0153-D, 2001 WL 1142706,

at *1 (N.D. Tex. Sept. 25, 2001) (citing Hebert Abstract v. Touchstone

Props., Ltd., 914 F.2d 74, 76 (5th Cir. 1990)). “The standard for

dismissal under Rule 12(c) is the same as that for dismissal for

 

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failure to state a claim under Rule 12(b)(6).” Johnson v. Johnson,

385 F.3d 503, 528 (5th Cir. 2004) (citing Great Plains Trust Co. v.

Morgan Stanley Dean Witter & Co., 313 F.3d 305, 313 n.8 (5th Cir.

2002)). Consequently, when reviewing a motion for judgment on the

pleadings, a court must view the pleadings in the light most favorable

to, and draw all reasonable inferences in favor of, the nonmoving

party. Davidson v. Flynn, 32 F.3d 27, 29 (2d Cir. 1994).

Furthermore, the motion “should not be granted unless the plaintiff

would not be entitled to relief under any set of facts that he could

prove consistent with the complaint.” Johnson, 385 F.3d at 528

(citing Great Plains Trust, 313 F.3d at 313). “Judgment on the

pleadings is appropriate only if material facts are not in dispute

and questions of law are all that remain.” Voest-Alpine Trading USA

Corp. v. Bank of China, 142 F.3d 887, 891 (5th Cir. 1998) (citing

Hebert Abstract Co. v. Touchstone Properties, Ltd., 914 F.2d 74, 76

(5th Cir. 1990)).

B. Qualified Immunity

In this case, Crouch seeks judgment on the pleadings on the basis

that he is entitled to qualified immunity. To the extent Mullins

seeks money damages directly from Crouch for his actions taken under

color of state law, Crouch may invoke his right to qualified immunity.

See Hafer v. Melo, 502 U.S. 21, 26 (1991). Public officials

performing discretionary functions enjoy immunity from suits for

damages, provided their “conduct does not violate clearly established

statutory or constitutional rights of which a reasonable person would

have known.” Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). Because

 

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3

This second prong of the three-tiered inquiry is often

condensed into “objective reasonableness.” Many cases, then, ask

whether the accused government official’s conduct was objectively

reasonable. See, e.g., Conroe Creosoting Co., 249 F.3d at 340. 

Anderson seems to supply the intermediate language between the

full and the condensed expression of this second prong: “Whether

an official protected by qualified immunity may be held

personally liable for an allegedly unlawful official action turns

on the ‘objective legal reasonableness’ of the action . . .

assessed in light of the legal rules that were ‘clearly

established’ at the time it was taken.” Anderson v. Creighton,

483 U.S. 635 (1987).

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an official is entitled to immunity from suit, not merely from

liability, immunity questions should be resolved at the earliest

possible stage in the litigation. Hunter v. Bryant, 502 U.S. 224,

227 (1991). 

When this Court is called upon to confer qualified immunity upon

a government official accused of violating a federal constitutional

or statutory right, the Fifth Circuit requires the Court first to

employ a three-tiered inquiry. See Conroe Creosoting Co. v.

Montgomery Cty., Tex., 249 F.3d 337, 340 (5th Cir. 2001). Initially,

the Court must determine whether the complainant has actually alleged

the violation of a federal constitutional or statutory right. See

id.; Wilson v. Layne, 526 U.S. 603, 609 (1999). If the Court

determines that he has, the Court must then decide whether, at the

time of the alleged violation, that right was so clearly established

that a reasonable government official in the defendant’s situation

would have understood that his conduct violated that right.3 See

Brewer v. Wilkinson, 3 F.3d 816, 820 (5th Cir. 1993). No prior case

directly on point need be extant but, again, the official must have

been able to understand that what he did violated a federal right.

 

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4

 The Court notes, once again, that the first step in

performing a qualified-immunity analysis is always to determine

whether the plaintiff has alleged a violation of a constitutional

right. In some circumstances, such as in this case where the

plaintiff is alleging that his constitutional right to be free

from unreasonable searches and seizures has been violated, the

first step of the qualified-immunity analysis involves a

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See Anderson v. Creighton, 483 U.S. at 640; Hassan v. Lubbock Indep.

Sch. Dist., 55 F.3d 1075, 1079 (5th Cir. 1995). Finally, the Court

must “determine whether the record indicates that the violation

occurred, or gives rise to a genuine issue of material fact as to

whether the defendant actually engaged in the conduct that violated

the clearly established right.” See Conroe Creosoting Co., 249 F.3d

at 340; Morris v. Dearborne, 181 F.3d 657, 666 (5th Cir. 1999).

III. Analysis

Before an officer may be stripped of his immunity from suit on

the basis of a faulty search or arrest warrant, the plaintiff must

first allege the violation of a constitutional right. Warrants must

be supported by probable cause in order to satisfy the requirements

of the Fourth Amendment. The Supreme Court has adopted a “totality

of the circumstances” test in evaluating whether a warrant is

supported by probable cause. See Illinois v. Gates, 462 U.S. 213,

238 (1983); Bennett v. City of Grand Prairie, 883 F.2d 400, 404 (5th

Cir. 1989).

In the usual case, when a neutral magistrate issues a warrant,

which he may do only after concluding that probable cause exists,

a presumption is raised that it is reasonable for the officer to

believe that there is probable cause.4 See Golino v. City of New

 

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reasonableness issue: Were the search and seizure unreasonable? 

The Supreme Court in Anderson v. Creighton, 483 U.S. 635, 636-37

(1987), and Saucier v. Katz, 533 U.S. 194, 197 (2001), has made

clear that this analysis is not to be confused or combined with

the second step of the qualified-immunity analysis, which also

contains a reasonableness issue: Was the right to be free of

illegal searches and seizures so clearly established that a

reasonable officer in the defendant’s situation would have

understood that his conduct violated that right? 

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Haven, 950 F.2d 864, 870 (2d Cir. 1991). The reasonableness of a

warrant can be undermined, however, by a warrant application that

contains material misstatements and omissions. See Hale v. Fish,

899 F.2d 390, 400-01 (5th Cir. 1990). In Franks v. Delaware, 438

U.S. 154, 171 (1978), the Supreme Court held that an officer is liable

for swearing to false (or omitted) information in an affidavit for

a search warrant if the affiant knew the information was false or

would have known it was false but for the affiant’s reckless disregard

for the truth, and the warrant would not establish probable cause

without the false information. 

Mullins contends that Crouch knew that a trust fund had not been

established for Zachary despite his affidavits’ averments to the

contrary. Mullins also contends that Crouch knew that she had not

solicited any gifts or donations. The problem with Mullins’s

position, however, is that even if these statements in the affidavits

are false, the Court concludes that the affidavits nevertheless

establish probable cause to believe that Mullins engaged in theft

without considering these allegedly false statements.

Under Texas law, “[a] persons commits an offense if he unlawfully

appropriates property with intent to deprive the owner of the

 

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property.” TEX. PENAL CODE ANN. § 31.03(a) (Vernon 2003). The term

“appropriate” means “to acquire or otherwise exercise control over

property other than real property.” Id. § 31.01(4)(b). The

appropriation of property is unlawful if “it is without the owner’s

effective consent.” Id. § 31.03(b). Consent is ineffective if it

is “induced by deception.” Id. § 31.01(3)(A). The term “deception”

is defined as “creating or confirming by words or conduct a false

impression of . . . fact that is likely to affect the judgment of

another in the transaction, and that the actor does not believe to

be true.” Id. § 31.01(1)(A).

Even if the averments that Mullins created a trust fund and

received “unknown amount of monies” for her and baby Zachary’s support

are removed from the affidavits, the affidavits nevertheless establish

probable cause to believe that Mullins engaged in theft. The

affidavits clearly aver that Mullins appropriated other property in

addition to the alleged monies, inasmuch as the affidavits allege

that Mullins received gifts for both her and Zachary’s support.

Indeed, Mullins admits in her reply to Crouch’s answer that she

received baby clothes and a book from Eckstein. The fact that these

items were not specifically solicited by Mullins does not absolve

her under the statute, which only requires that Mullins “acquire or

otherwise exercise control over” the property. Id. § 31.01(4)(B).

Furthermore, the affidavits clearly allege facts suggesting that

Mullins’s acquisition of this property was without Eckstein’s

effective consent and was with the intent to deprive her of the

property, given the allegations that Mullins fabricated the existence

 

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of both Alexis Marquis and baby Zachary, the death of Marquis, the

house and acreage, the construction of a playground there, and

Mullins’s MRI and illness. Consequently, even upon ignoring the

averments that Mullins contends are false, Crouch’s affidavits

establish probable cause to believe that Mullins engaged in theft

under Texas law. As a result, Mullins has failed to allege facts

demonstrating a violation of her constitutional rights.

IV. Conclusion

For the foregoing reasons, Crouch’s Motion for Judgment on the

Pleadings [document number 18] is hereby GRANTED. Mullins shall take

nothing by way of her constitutional claims against Crouch, and those

claims are hereby DISMISSED WITH PREJUDICE to their refiling.

Inasmuch as the federal claims have now been dismissed, the Court

declines to exercise supplemental jurisdiction over Mullins state-law

claims against Crouch. See 28 U.S.C. § 1367(a)(3).

SIGNED April 28, 2005.

TERRY R. MEANS

UNITED STATES DISTRICT JUDGE

 

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