IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 00-10585
Summary Calendar
JACK HAMMOND CLAY, JR.;
CHRISTIAN CLAY; DANIELLE LICHTENSTERN,
Plaintiffs-Appellants,
versus
JIM BOWLES, Sheriff of Dallas County;
DALLAS COUNTY, TX; KNIGHT #519, Dallas
Deputy Sheriff; J TEMPLE #538, Dallas
County Sheriff’s employee; CURTIS KALOI #627,
Irving Police Officer; CITY OF IRVING;
IRVING INDEPENDENT SCHOOL DISTRICT; FISHER, Dr,
Irving Independent School District employee;
UNKNOWN OTHERS,
Defendants-Appellees.
- - - - - - - - - -
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 3:99-CV-82-X
- - - - - - - - - -
January 19, 2001
Before DAVIS, JONES and DeMOSS, Circuit Judges.
PER CURIAM:*
Plaintiffs appeal the summary judgments in favor of all
defendants and the dismissal of their 42 U.S.C. § 1983 claims
stemming from the search of Danielle Lichtenstern’s person and
car by a school official and the subsequent arrest of Danielle
Lichtenstern at the residence she shared with her stepfather,
*
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this opinion should not be published and is not precedent except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.
No. 00-10585
-2-
Jack Hammond Clay, Jr., and her mother, Christian Clay.
Appellants argue that appellee Fisher’s search of Lichtenstern’s
person and car was unconstitutional because Fisher lacked
probable cause, thus the search was a violation of Lichtenstern’s
Fourth Amendment right to be secure from unreasonable search and
seizure.
The Clays were not present during the search and their
rights were not violated. Thus, the district court did not err
in concluding that Jack Hammond Clay, Jr., and Christian Clay
lacked standing to assert a Fourth Amendment claim for unlawful
search and seizure as they failed to show that they suffered an
actual or threatened injury as a result of the actions of the
defendants. See Johnson v. Hosp. Corp. of America, 95 F.3d 383,
390 (5th Cir. 1996). Because Lichtenstern did not appeal the
denial of her motion to suppress and pleaded nolo contendre to
the charge for possession of marijuana, she waived her Fourth
Amendment challenge to the search and seizure that resulted in
discovery of the marijuana. See Smith v. Estelle, 711 F.2d 677,
682 (5th Cir. 1983).** Moreover, any challenge to the validity
of Lichtenstern’s conviction is barred by Heck v. Humphrey, 512
U.S. 477 (1994). The district court did not err in dismissing
Lichtenstern’s challenge to the constitutionality of the search
and seizure.
Appellants challenge the validity of the arrest on the basis
that the warrant did not comply with Texas law. Although the
**
See also, Carter v. Collins, 918 F.2d 1198, 1200 n.1 (5th
Cir. 1990)(a nolo contendere plea is treated as an admission of
guilt, the same as a guilty plea).
No. 00-10585
-3-
allegedly defective warrant was executed at the Clays’ home, they
cannot show that they suffered an actual or threatened injury
therefrom. They therefore have no standing to challenge the
arrest of their daughter. See Johnson, 95 F.3d at 390.
To prevail on a claim of illegal arrest, Lichtenstern would
have to prove that there was no probable cause to arrest her.
Trejo v. Perez, 693 F.2d 482, 486 (5th Cir. 1982). The marijuana
found in Lichtenstern’s car provided the requisite probable
cause. See Wells v. Bonner 45 F.3d 90, 95 (5th Cir. 1995);
United States v. Jones, 185 F.3d 459, 464 (5th Cir. 1999), cert.
denied, 121 S. Ct. 125 (2000). Plaintiffs do not argue
otherwise. This claim is without merit.
Appellants argue that Dr. Fisher, Officer Kaloi, Deputy
Knight, and Temple, were not following the established policy and
customs of their employers, thus they are not entitled to “good
faith” immunity. They also argue that Sheriff Bowles and the
Dallas County Sheriff’s Department have a policy and custom that
allows the execution of invalid warrants, and that Deputy Knight
and Temple were acting pursuant to that policy in accepting and
executing the warrant for Lichtenstern’s arrest. These arguments
appear to be a challenge to a qualified immunity defense.
However, the district court did not rely on immunity to dismiss
plaintiffs’ claims. This argument is therefore moot.
Appellants assert in their “Statement of Issues” and in
their “[c]onclusion” that the district court erred in failing to
instruct them to respond to all of the defendants’ assertions of
qualified immunity. However, plaintiffs have not briefed this
No. 00-10585
-4-
point of error. It is therefore waived. See Al Ra’id v. Ingle,
69 F.3d 28, 33 (5th Cir. 1995).
The district court did not err in finding that there were no
genuine issues of material fact and that the defendants were
entitled to judgment as a matter of law. See Harris v. Rhodes,
94 F.3d 196, 197-98 (5th Cir. 1996).
AFFIRMED.