1

The court notes that plaintiff's claims are asserted against

"Tony Simmons, in his official capacity," Pl.'s Original Pet. at 1,

and that no claims are asserted against Simmons individually. 

Nevertheless, because the parties have treated the petition as

asserting individual-capacity claims, the court is proceeding as

though such claims had been properly asserted.

IN THE UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF TEXAS

FORT WORTH DIVISION

GREGORY BROWN, §

§

Plaintiff, §

§

VS. § NO. 4:04-CV-871-A

§

TONY SIMMONS, ET AL., §

§

Defendants. §

MEMORANDUM OPINION

and

ORDER

Came on for consideration the motion of defendant Tony

Simmons ("Simmons") for summary judgment based on qualified

immunity.1 The court, having considered the motion, the response

of plaintiff, Gregory Brown, the record, the summary judgment

evidence, and applicable authorities, finds that the motion

should be granted. The court further finds that because

plaintiff's claims against defendant Trophy Club, Texas, ("Trophy

Club") are contingent on the existence of a violation of

plaintiff's constitutional rights by Simmons, judgment in favor

of Trophy Club would also be appropriate. The court is,

nevertheless, giving plaintiff an opportunity to respond before

making such a ruling.

 

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2

I.

Plaintiff's Claims

On August 6, 2004, plaintiff filed his original petition in

the 153rd Judicial District Court of Tarrant County, Texas. The

action was brought before this court by notice of removal filed

November 24, 2004.

Plaintiff alleges that Simmons, a police officer employed by

Trophy Club violated plaintiff's Fourth Amendment rights by

causing plaintiff to be arrested pursuant to an arrest warrant

issued without probable cause. Plaintiff further alleges that

Trophy Club is liable because Simmons acted as a policymaker;

Trophy Club ratified Simmons's acts; and, Trophy Club failed to

properly train Simmons. Plaintiff seeks damages and attorney's

fees. 

II.

Grounds of the Motion

In a footnote on the first page of his summary judgment

motion, Simmons notes that, to the extent he has only been sued

in his official capacity, he is entitled to dismissal of all

claims against him. Suing a governmental official in his

official capacity is merely another way of pleading an action

against the official's employer. Kentucky v. Graham, 473 U.S.

159, 165-66 (1985); Brandon v. Holt, 469 U.S. 464, 471 (1985). 

Plaintiff apparently agrees, having made no response to this

point.

 

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3

Simmons cites two grounds in support of his motion for

summary judgment based on qualified immunity. First, plaintiff

cannot establish a violation of a constitutional right with

respect to any of Simmons's actions. And, second, the evidence

establishes, as a matter of law, the objective reasonableness of

Simmons's conduct. 

III.

Applicable Summary Judgment Principles

A party is entitled to summary judgment on all or any part

of a claim as to which there is no genuine issue of material fact

and as to which the moving party is entitled to judgment as a

matter of law. Fed. R. Civ. P. 56(c); Anderson v. Liberty Lobby,

Inc., 477 U.S. 242, 247 (1986). The moving party has the initial

burden of showing that there is no genuine issue of material

fact. Anderson, 477 U.S. at 256. The movant may discharge this

burden by pointing out the absence of evidence to support one or

more essential elements of the non-moving party's claim "since a

complete failure of proof concerning an essential element of the

nonmoving party's case necessarily renders all other facts

immaterial." Celotex Corp. v. Catrett, 477 U.S. 317, 323-25

(1986). Once the moving party has carried its burden under Rule

56(c), the non-moving party must do more than merely show that

there is some metaphysical doubt as to the material facts. 

Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S.

574, 586 (1986). The party opposing the motion may not rest on

mere allegations or denials of pleading, but must set forth

 

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4

specific facts showing a genuine issue for trial. Anderson, 477

U.S. at 248, 256. To meet this burden, the nonmovant must

"identify specific evidence in the record and articulate the

'precise manner' in which that evidence support[s] [its]

claim[s]." Forsyth v. Barr, 19 F.3d 1527, 1537 (5th Cir. 1994). 

An issue is material only if its resolution could affect the

outcome of the action. Anderson, 477 U.S. at 248. Unsupported

allegations, conclusory in nature, are insufficient to defeat a

proper motion for summary judgment. Simmons v. Lyons, 746 F.2d

265, 269 (5th Cir. 1984).

The standard for granting a summary judgment is the same as

the standard for rendering judgment as a matter of law. Celotex

Corp., 477 U.S. at 323. If the record taken as a whole could not

lead a rational trier of fact to find for the non-moving party,

there is no genuine issue for trial. Matsushita, 475 U.S. at

597. See also Boeing Co. v. Shipman, 411 F.2d 365, 374-75 (5th

Cir. 1969) (en banc) (explaining the standard to be applied in

determining whether the court should enter judgment on motions

for directed verdict or for judgment notwithstanding the

verdict). 

IV.

Undisputed Evidence

The following is an overview of evidence pertinent to the

motion for summary judgment that is undisputed in the summary

judgment record:

 

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On July 30, 2002, at approximately 3:45 a.m., the 7-Eleven

convenience store in Trophy Club was burglarized. The burglary

was videotaped by the store's security cameras. The tape showed

two white males entering the store and taking numerous items. 

Lottery tickets were among the items stolen. Later that day, a

lottery ticket worth $500 was redeemed at the Tom Thumb store in

Trophy Club, and sixteen other lottery tickets were redeemed at a

Kroger grocery store in nearby Southlake, Texas. The tickets

redeemed were among those stolen from the 7-Eleven.

On July 31, 2002, Simmons and another Trophy Club officer

met with a Texas Lottery Commission investigator regarding the

stolen lottery tickets. The investigator had traced the tickets

cashed at the Tom Thumb and Kroger to the burglary. Later that

day, Simmons interviewed Roxanne Davies, the Tom Thumb cash

office assistant who was on duty at the time the lottery ticket

was redeemed at the Tom Thumb in Trophy Club. Ms. Davies told

Simmons that she saw five young white males enter the store; that

two of them went to the photo area of the store to cash a lottery

ticket; that due to the large amount to be paid, they were

directed to the cash office; and, that one of them, who appeared

to be seventeen to nineteen years of age and thinly built,

approached her window to cash the ticket. Simmons then

interviewed Kathryn Cyr, the photo area clerk who was working at

the Tom Thumb at the time. Ms. Cyr described two individuals who

approached her about cashing a lottery ticket. She described the

individual who tried to cash the lottery ticket with her as

 

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2

Although the parties refer to Jackson as an eighteen-year-old,

his affidavit shows that he was nineteen, having been born on June 6,

1983, and the affidavit given on August 2, 2002.

6

skinny, dressed preppy, wearing shorts or baggy pants, nicelooking, and about age nineteen. Ms. Cyr stated that the

individual had defined features, with notable cheekbones and

short hair. 

On July 31, 2002, Simmons also interviewed Susan Stringer,

the manager of the Kroger store in Southlake, where sixteen of

the stolen lottery tickets were redeemed. Simmons learned that

at 1:49 p.m. a white male in a white T-shirt, baggy pants, and a

baseball cap drove a dark-colored sports car, which looked like a

Ford Mustang, into the Kroger parking lot. The white male driver

looked to be between the ages of seventeen and twenty. Simmons

was able to watch security camera videotape footage at that time. 

The Kroger manager would not allow Simmons to take the videotape,

but he was permitted to take photographs of the screen on which

the footage was playing. 

On August 2, 2004, Simmons reviewed videotape evidence he

had gathered regarding the stolen lottery tickets, including the

videotape footage taken at the Tom Thumb. While he was reviewing

the evidence, David Jackson walked by. Jackson, who was nineteen

years old,2 had recently graduated from Northwest High School. 

Jackson was the Lieutenant of Learning for Life Law Enforcement

Explorer Post No. 957. Jackson had passed a criminal background

check before being accepted into the Explorer program and his

 

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7

character and reputation had been checked through resource

officers at the local high school. Simmons had known and worked

with Jackson through the Explorers since 2001. Simmons was of

the opinion that Jackson was a trustworthy, reliable individual. 

Jackson was frequently at the police department because of his

activities as an Explorer.

Jackson reviewed the videotape from the Tom Thumb security

camera with Simmons. Jackson told Simmons that he recognized the

person who appeared on the videotape redeeming the stolen lottery

ticket as plaintiff. Jackson said that they had gone to high

school together. Jackson also recognized some of the others who

had been at the Tom Thumb store. Jackson showed Simmons a

picture of plaintiff in the Northwest High School annual. 

Simmons took a sworn statement from Jackson relating these facts. 

Simmons made a photocopy of the annual page including

plaintiff's photograph. He showed the photograph to Cyr, who

identified plaintiff as the individual who had attempted to cash

the stolen lottery ticket. She wrote next to the photograph,

"This is the guy that gave me the $500 ticket." Simmons's App.

at 22. Next, Simmons went to Trophy Club police records and

discovered that plaintiff had been issued a citation while

operating a 2000 black Ford Mustang automobile. The vehicle was

similar to the one driven to the Kroger store. 

Based on his training and experience as a police officer,

Simmons was satisfied that the two identifications and matching

the type and color of car were sufficient to establish probable

 

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8

cause to seek an arrest warrant. Simmons drafted an affidavit in

support of a warrant for plaintiff's arrest for the offense of

claiming a lottery prize by fraud. He presented the affidavit to

Magistrate Eric Ranslben on August 6, 2002, and the arrest

warrant was issued. In Simmons's experience with Magistrate

Ranslben, Magistrate Ranslben had always been very strict in

requiring sufficient probable cause for an arrest warrant. 

Simmons informed officers at the University of Texas at

Arlington police department that he had a warrant for the arrest

of plaintiff. On August 7, 2002, campus police called plaintiff

out of his government class and arrested him. Simmons did not

give any instructions to the campus police officers as to how the

arrest should be accomplished. At the time of plaintiff's

arrest, campus police officers did not allow outside police

officers to conduct on-campus arrests. After plaintiff was

arrested, Simmons put leg irons on him and transported him to

Trophy Club.

Plaintiff was accused by Simmons of burglarizing the 7-

Eleven and attempting to cash a stolen lottery ticket. Simmons

told plaintiff that he had been caught on videotape committing

the crimes and that he should confess to them. When Simmons

showed plaintiff some of the security camera video footage,

plaintiff admitted that he could understand how someone could

believe that he was the individual on the videotape. Plaintiff

himself identified another individual in the security camera

videotape footage. The person plaintiff identified was not the

 

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9

individual on the videotape, but was able to identify the actual

guilty party. Plaintiff was released on bond on August 7, 2002,

and all charges against him were dropped the following week.

V.

Analysis

A. Law Pertinent to the Motion.

Qualified immunity insulates a government official from

civil damages liability when the official's actions do 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). For a right to be "clearly

established," the right's contours must be "sufficiently clear

that a reasonable official would understand that what he is doing

violates that right." Anderson v. Creighton, 483 U.S. 635, 640

(1987). Individual liability thus turns on the objective legal

reasonableness of the defendant's actions assessed in light of

clearly established law at the time. Hunter v. Bryant, 502 U.S.

224, 228 (1991); Anderson, 483 U.S. at 639-40. In Harlow, the

court explained that a key question is "whether that law was

clearly established at the time an action occurred" because "[i]f

the law at that time was not clearly established, an official

could not reasonably be expected to anticipate subsequent legal

developments, nor could he fairly be said to 'know' that the law

forbade conduct not previously identified as unlawful. . . ." 

457 U.S. at 818. If public officials of reasonable competence

could differ on the lawfulness of defendant's actions, the

 

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10

defendant is entitled to qualified immunity. Malley v. Briggs,

475 U.S. 335, 341 (1986); Fraire v. City of Arlington, 957 F.2d

1268, 1273 (5th Cir.), cert. denied, 506 U.S. 973 (1992). As the

Fifth Circuit has noted, "[f]or qualified immunity to be

surrendered, pre-existing law must dictate, that is, truly compel

(not just suggest or allow or raise a question about), the

conclusion for every like-situated, reasonable government agent

that what defendant is doing violates federal law in the

circumstances." Sorenson v. Ferrie, 134 F.3d 325, 330 (5th Cir.

1998) (citations omitted). 

In analyzing whether an individual defendant is entitled to

qualified immunity, the court considers whether plaintiff has

alleged any violation of a clearly established right, and, if so,

whether the individual defendant's conduct was objectively

reasonable. Siegert v. Gilley, 500 U.S. 226, 231 (1991); Duckett

v. City of Cedar Park, 950 F.2d 272, 276-80 (5th Cir. 1992). In

so doing, the court should not assume that plaintiff has stated a

claim, i.e., asserted a violation of a constitutional right. 

Siegert, 500 U.S. at 232. Rather, the court must be certain

that, if the facts alleged by plaintiff are true, a violation has

clearly occurred. Connelly v. Comptroller, 876 F.2d 1209, 1212

(5th Cir. 1989). A mistake in judgment does not cause the

municipal employee to lose his qualified immunity defense. In

Hunter, the Supreme Court explained:

The qualified immunity standard "gives ample room for

mistaken judgments" by protecting "all but the plainly

incompetent or those who knowingly violate the law." 

 

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11

Malley [475 U.S.] at 343. This accommodation for

reasonable error exists because "officials should not

err always on the side of caution" because they fear

being sued. Davis [v. Scherer, 468 U.S. 183, 196

(1984)].

502 U.S. at 229.

The Fourth Amendment does not guarantee that only the guilty

will be arrested. Baker v. McCollan, 443 U.S. 137, 145 (1979). 

Nor does the Constitution require error-free investigation. 

Patterson v. Armatys, 808 F. Supp. 550, 552 (E.D. Tex. 1992). A

plaintiff has no cause of action for negligent conduct of

investigating officers. Id. 

B. Whether Simmons is Entitled to Qualified Immunity.

The first issue is whether plaintiff has alleged any

violation of a clearly established right. Siegert, 500 U.S. at

232. Plaintiff alleges that he was arrested based on an invalid

warrant obtained without probable cause. If that were the case,

plaintiff would have stated a claim. However, whether

plaintiff's arrest was illegal hinges on the absence of probable

cause. If plaintiff cannot show that Simmons lacked probable

cause, he has failed to state the violation of a constitutional

right, and Simmons is entitled to qualified immunity. Sorenson,

134 F.3d at 328. 

The court considers the totality of the facts and

circumstances within Simmons's knowledge at the time he obtained

the warrant and whether, based on the information Simmons

possessed, a reasonable person could come to the same objective

conclusion, that is, that probable cause existed for the issuance

 

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3

The summary judgment evidence alludes to the existence of a

second warrant, Simmons's App. at 28, but a copy of such warrant has

not been produced. Surely, if one existed, plaintiff would have

(continued...)

12

of a warrant. Ohio v. Robinette, 519 U.S. 33, 38-39 (1996). 

Here, the summary judgment evidence establishes that Simmons

relied upon the statements of two people who identified plaintiff

as the person who cashed one of the stolen lottery tickets. 

Simmons had worked with one of those persons, Jackson, and

believed him to be trustworthy and reliable. The other, Cyr, was

an eye-witness to the cashing of the lottery ticket. Neither

expressed any doubt about the identification of plaintiff. 

Although plaintiff is not happy that the sequence of events that

set in motion his arrest was initiated by a former classmate, a

person his age, he has not shown that no reasonable officer would

have believed that probable cause existed. See Babb v. Dorman,

33 F.3d 472, 477 (5th Cir. 1994).

Plaintiff focuses on allegedly omitted facts in attacking

the warrant affidavit. There is no evidence, however, that

Simmons made material misstatements or misrepresented any of the

facts critical to a finding of probable cause. See Morin v.

Caire, 77 F.3d 116 (5th Cir. 1996). The record reflects that,

although it mentioned the crime of burglary, the arrest warrant

was issued for the crime of claiming a lottery prize by fraud. 

Clearly, probable cause existed for the issuance of that warrant. 

That plaintiff was also charged with burglary of a building, or

that a second warrant may have been issued for that crime,3 a

 

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3

(...continued)

produced a copy of it.

13

crime for which probable cause may not have existed for his

arrest separate and apart from the evidence linking him to the

related lottery ticket cashing, does not have any bearing on the

propriety of plaintiff's arrest. That is, there was one arrest

and there is no evidence that plaintiff suffered any additional

penalty as a result of having been charged with the commission of

two crimes rather than one, where a reasonable officer would have

believed that probable cause existed as to at least one of them.

As the Supreme Court has noted, it is inevitable that law

enforcement officials will in some cases reasonably but

mistakenly conclude that probable cause is present and, in such

cases, they should not be held personally liable. Anderson, 483

U.S. at 641. Plaintiff has not shown that this is anything more

than one of those cases. Plaintiff admitted that he understood

how he could have been identified as the person claiming the

lottery prize. Plaintiff himself misidentified one of the other

participants. There was nothing malicious or reckless or

unlawful about his doing so or about Simmons's reliance on the

persons who identified plaintiff as the perpetrator. 

C. Plaintiff's Claims Against Trophy Club (Including

Official Capacity Claims Against Simmons).

With regard to Trophy Club, plaintiff alleges:

Defendant Trophy Club is also liable to

[plaintiff] for the actions that led to his wrongful

arrest without probable cause because the acts of

Officer Simmons, acting as a policymaker, were

 

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14

tantamount to a policy decision of the municipality in

determining the manner that the investigation of claims

would be conducted, the minimum amount of evidence

needed for application for an arrest warrant, and the

information that should be placed in an affidavit

seeking such a warrant. In addition, and on

information and belief, Defendant Trophy Club is liable

for Officer Simmons' deprivation of [plaintiff's]

rights by ratifying or acquiescing to Officer Simmon's

[sic] violations of [plaintiff's] constitutional and

common law rights by failing to reprimand, discipline

or discharge Officer Simmons for his actions. Finally,

Trophy Club is liable for Officer Simmons' action since

it failed to properly train Officer Simmons in proper

investigatory techniques as evidenced by the techniques

used in [plaintiff's] case.

Pl.'s Original Pet. at 5-6, ¶ 19. 

With regard to the liability of Trophy Club, the law is

clearly established that the doctrine of respondeat superior does

not apply to § 1983 actions. Monell v. New York City Dep't of

Soc. Servs., 436 U.S. 658, 691 (1978); Williams v. Luna, 909 F.2d

121, 123 (5th Cir. 1990). Neither a supervisory official nor a

governmental entity can be held liable for failing to adopt

policies to prevent constitutional violations. See, e.g., Vela

v. White, 703 F.2d 147, 153 (5th Cir. 1983); Reimer v. Smith, 663

F.2d 1316, 1323 (5th Cir. 1981); Wanger v. Bonner, 621 F.2d 675,

680 (5th Cir. 1980). Moreover, a plaintiff must allege more than

an isolated incident of purported harm to establish a claim

against such person or entity. Fraire, 957 F.2d at 1278;

McConney v. City of Houston, 863 F.2d 1180, 1184 (5th Cir. 1989);

Languirand v. Hayden, 717 F.2d 220, 227-28 (5th Cir. 1983). 

Without a pattern or practice of recurring constitutional

violations, neither negligence nor gross negligence suffices as a

 

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15

basis for liability. Stokes v. Bullins, 844 F.2d 269, 274 (5th

Cir. 1988). There must be a link between the policy and the

particular constitutional violation alleged. City of Oklahoma

City v. Tuttle, 471 U.S. 808, 823 (1985). And, where a defendant

establishes as a matter of law that no constitutional deprivation

occurred, it does not matter that a policy would have authorized

the conduct about which the plaintiff complains. City of Los

Angeles v. Heller, 475 U.S. 796, 799 (1986); Riggs v. City of

Pearland, 177 F.R.D. 395, 408 (S.D. Tex. 19997).

Here, Simmons has established as a matter of law that no

constitutional deprivation occurred. Hence, there is no basis

for liability on the part of Trophy Club and no purpose would be

served by allowing plaintiff to proceed with claims against it. 

Plaintiff had notice that he must come forward with evidence to

raise a genuine fact issue as to the alleged constitutional

violation. Because he did not meet his burden, entry of judgment

on behalf of Trophy Club is appropriate. See Celotex, 477 U.S.

at 326. However, the court will give plaintiff an opportunity to

show why he should be allowed to proceed with his claims against

Trophy Club.

VI.

Order

For the reasons discussed herein, 

The court ORDERS that Simmons's motion for summary judgment

be, and is hereby, granted; that plaintiff take nothing on his

 

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16

claims against Simmons; and, that such claims be, and are hereby,

dismissed with prejudice. 

The court determines that there is no just reason for delay

in, and hereby directs, entry of final judgment as to the

disposition of plaintiff's claims against Simmons. 

The court further ORDERS that by 4:00 p.m. on May 25, 2005,

plaintiff show cause why his claims against Trophy Club should

not be dismissed with prejudice.

SIGNED May _____, 2005.

 /s/ John McBryde 

JOHN McBRYDE

United States District Judge

 

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