Barnes v. Madison

United States Court of Appeals
Fifth Circuit
F I L E D
November 4, 2003
IN THE UNITED STATES COURT OF APPEALS
Charles R. Fulbruge III
FOR THE FIFTH CIRCUIT Clerk

_____________________

No. 02-50937
_____________________

CAROLYN BARNES, Individually and as Next Friend of William
Zimmer Barnes, a Minor, and Charles Austin Lee Bednorz, a
Minor

Plaintiff - Appellant

v.

KEVIN RINDLER MADISON; ET AL

Defendants

KEVIN RINDLER MADISON; JOSEPH M OSWALD; BARBARA J THOMPSON;
ALAN THOMPSON; WILLIE RICHARDS; CITY OF ROUND ROCK TEXAS;
WILLIAMSON COUNTY, TEXAS; CITY OF CEDAR PARK; DUGGER,
Detective; MICHAEL P DAVIS

Defendants - Appellees

_________________________________________________________________

Appeal from the United States District Court
for the Western District of Texas
No. A-01-CV-547-H
_________________________________________________________________

Before KING, Chief Judge, and DAVIS and EMILIO M. GARZA, Circuit
Judges.

PER CURIAM:*

*
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that this opinion should not be published and is not precedent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.
 The plaintiff sued several local governments and their

employees for violations of federal and state law arising out of

an allegedly illegal arrest. The district court granted the

defendants’ motions for summary judgment and entered an order of

sanctions against the plaintiff. The plaintiff now appeals. For

the following reasons, we AFFIRM.

I. FACTUAL AND PROCEDURAL BACKGROUND

This case began with a speeding ticket that plaintiff

Carolyn Barnes received in Cedar Park, Texas. The speeding

ticket, along with an accompanying citation for driving without

proof of insurance, required Barnes to appear in Cedar Park’s

municipal court on or before April 5, 2000. Barnes claims that

she entered a legally sufficient appearance in March 2000 by

sending the court a request form for a defensive driving course.

She also came to the court in person on April 5, but Cedar Park

court employees informed her on that date that she must present

her driving record in order to qualify for the defensive driving

course. The employees suggested that Barnes return on April 7,

and Barnes did return on that date with her driving record in

hand. The court personnel then informed her, however, that she

was ineligible to take the defensive driving course, because her

driving record showed that she had already taken such a course

within the previous year. Barnes was told that she could return

on a later date to talk to a judge about resolving the matter,

2
but she declined. Barnes instead wrote a letter to the municipal

court explaining the situation and asking for help in resolving

it.

Barbara Thompson, a clerk of the Cedar Park municipal court,

sent Barnes a letter on April 10 directing Barnes to make an

appearance within ten days. According to Barnes, the letter was

returned to the court on April 13 because it was sent to an old

address. In any case, the ticket remained outstanding, and on

April 25 a warrant for Barnes’s arrest was issued, with Officer

Alan Thompson of the Cedar Park police acting as complaining

witness. The failure-to-appear warrant was not executed at that

time.

Clerk Thompson sent Barnes another letter on May 15 that

mentioned the warrant and directed Barnes to speak with one of

the municipal court judges immediately. Barnes says that she

received the letter upon returning from vacation on May 29; until

then, she had not been aware of the arrest warrant. Upon reading

the letter from the court, Barnes immediately wrote a letter to

Clerk Thompson contending that she had in fact made a valid

appearance in court and insisting that the arrest warrant was

therefore improper. Barnes’s letter to the court, however, went

well beyond expressing mere irritation at a perceived

bureaucratic slip-up. The letter concluded with the following

passage:

3
 I WILL FIGHT TO THE DEATH WITH ANYONE WHO TRIES TO PULL
ME FROM MY HOME, MY CAR, OR MY WORKPLACE!!! I WILL NOT
BE ARRESTED AND THROWN IN JAIL! WHOEVER DIES, THE BLOOD
WILL BE ON YOUR HANDS!

. . .

I WILL NOT GO PEACEFULLY TO ANY JAIL, I WOULD RATHER DIE
FIRST AND I WILL DIE FIGHTING FOR MY FREEDOM BECAUSE I
HAVE NOT DONE ANYTHING FOR WHICH I DESERVE TO BE THROWN
IN JAIL!

THIS MALICIOUS GOVERNMENTAL ACTIVITY AND ABUSE OF OUR TAX
DOLLARS IS THE CAUSE OF THE INCREASE IN VIOLENCE IN OUR
SOCIETY! THIS IS WHY PEOPLE BOMB GOVERNMENTAL OFFICES,
KILL COPS, AND KILL JUDGES BECAUSE OF ALL THE LIES AND
ABUSES!

. . .

IF I DO NOT HEAR FROM YOU WITHIN TEN DAYS THAT THIS FALSE
AND MALICIOUS ARREST WARRANT HAS BEEN RECALLED AND IF I
DO NOT RECEIVE THE PERSONAL WRITTEN ASSURANCE OF ALL YOUR
JUDGES THAT I WILL NOT BE HARASSED, MOLESTED, DISTURBED,
ARRESTED, OR JAILED WHEN I COME IN TO RESOLVE THIS
MATTER, THEN I WILL ASSSUME [sic] THAT WE REALLY ARE AT
WAR AND WILL ACT ACCORDINGLY. . . . I AM WILLING TO DIE
IN DEFENSE OF THIS OUTRAGEOUS INJUSTICE, ARE YOU WILLING
[to] DIE TO PROMOTE IT? IF I SEE ANY UNIFORMED PEOPLE
COME NEAR MY FAMILY, I WILL NOT WAIT TO ASK QUESTIONS!
I WILL DEFINITELY RESIST ARREST ANYTIME THERE IS A FALSE
AND MALICIOUS ABUSE OF PROCESS!

Clerk Thompson perceived the letter as a threat against her,

the court staff, and the municipal judges. She therefore turned

the letter over to the Cedar Park Police Department, where a Sgt.

Rackley determined that the letter constituted a “terroristic

threat” under § 22.07 of the Texas Penal Code.1 Officer Alan

1
The statute provides, in part:

(a) A person commits an offense if he threatens to
commit any offense involving violence to any person or
property with intent to:

4
Thompson signed a statement of facts for probable cause and

presented it to Judge Joseph Oswalt of the Cedar Park municipal

court. Sitting as a magistrate, Judge Oswalt issued an arrest

warrant on June 1.

Cedar Park police officers informed the City of Round Rock’s

police department of the situation, and Cedar Park Officer

Deborah Dugger appears to have faxed them documents related to

the warrant. On June 12, Officer Alan Thompson of Cedar Park,

accompanied by Round Rock police officers, went to Barnes’s

office in Round Rock to serve the warrant, but Barnes was

apparently not present. The next day, Round Rock police

officers, including Officer Willie Richards, arrested Barnes at

her Round Rock office. Richards allegedly searched Barnes’s

purse and belongings; Richards admits that he searched Barnes’s

purse for weapons and keys with which to lock the office.

(1) cause a reaction of any type to his threat by
an official or volunteer agency organized to deal
with emergencies;
(2) place any person in fear of imminent serious
bodily injury; or
(3) prevent or interrupt the occupation or use of
a building; room; place of assembly; place to
which the public has access; place of employment
or occupation; aircraft, automobile, or other form
of conveyance; or other public place; or
(4) cause impairment or interruption of public
communications, public transportation, public
water, gas, or power supply or other public
service.

TEX. PENAL CODE ANN. § 22.07 (Vernon 2003).

5
 Barnes was taken to the Williamson County jail for booking.

She complains that she was denied food, water, and telephone

calls during her approximately ten-hour stay, seven hours of

which came after she had posted bail. She claims as well that

jail employees misled two individuals who had come to give Barnes

a ride home by telling the individuals that Barnes would not be

released that night. She was eventually released around midnight

and then began to walk home; during the walk she was allegedly

further harassed and threatened by Williamson County officials.

When she returned home, she says that her home, office, and

vehicles had been ransacked; she blames Williamson County

officials, since they held her keys during her incarceration.

Barnes also claims that Williamson County employees harassed her

son at school and sprayed his belongings with a chemical that

would attract drug-sniffing dogs. This mistreatment, according

to Barnes, is motivated in part by the county’s desire to

retaliate against her for a lawsuit she brought against it in

state court several years earlier. Williamson County admits the

basic facts surrounding Barnes’s stay at the jail but denies her

various claims of mistreatment.

On June 7, 2001, Barnes filed suit in state court against

the following individuals and governmental entities: Cedar Park

municipal judges Joseph Oswalt and Kevin Madison, Barbara

Thompson of the Cedar Park municipal court clerk’s office, Alan

Thompson and Deborah Dugger of the Cedar Park Police Department,

6
and the City of Cedar Park (collectively, “Cedar Park

defendants”); the City of Round Rock and Willie Richards of the

Round Rock Police Department (collectively, “Round Rock

defendants”); and Williamson County. Barnes’s suit included

§ 1983 claims predicated on violations of several constitutional

provisions,2 as well as a host of state law claims.3 Barnes

filed suit on her own behalf and as next friend of her two minor

children. Barnes appeared pro se in the district court, as in

this court, but she is a licensed attorney.4

The case was removed to federal district court on August 21,

2001. As suggested by the nearly two hundred entries on the

district court’s docket sheet, the proceedings were marked by a

plethora of motions and disputes, many of which were referred to

the magistrate judge. The court repeatedly ordered Barnes to

amend her long-but-vague complaint in order to bring it into

compliance with Rule 8’s requirement that the averments be

“simple, concise, and direct.” See FED. R. CIV. P. 8(e)(1). Each

2
Namely, Barnes asserts violations of the First, Fourth,
Fifth, Sixth, Eighth, and Fourteenth Amendments.
3
These include negligence, gross negligence, negligent
infliction of emotional distress, assault, battery, intentional
infliction of emotional distress, conspiracy, respondeat superior
liability, false arrest, false imprisonment, malicious
prosecution, abuse of process, trespass, conversion, false light
invasion of privacy, defamation, tortious interference with
familial relations, and claims under the Texas Tort Claims Act.
4
Since Barnes is an attorney, we do not construe her
pleadings with the lenience normally afforded pro se litigants.
See Olivares v. Martin, 555 F.2d 1192, 1194 n.1 (5th Cir. 1977).

7
amended complaint maintained the character of its predecessors,

generally growing longer each time.

Barnes’s Third Amended Complaint added Michael Davis as a

new defendant.5 Davis was at the time Williamson County’s

attorney of record. The complaint accused Davis of faxing

defamatory letters and, more generally, of playing a part in the

other defendants’ various abuses and conspiracies. A Fourth

Amended Complaint came on November 30, 2001. Davis moved to

dismiss the claims against him on March 21, 2002, and his motion

was granted in part on May 24, 2002. On that same day, the

district judge denied Barnes’s motion to file a Fifth Amended

Complaint and add new defendants.

The claims against all of the defendants were disposed of in

the next two months. On June 11, 2002, the district court

granted the Cedar Park and Round Rock defendants’ motion for

summary judgment on all claims, and it denied Barnes’s motion for

partial summary judgment.6 The court granted summary judgment to

the remaining defendants (Davis and Williamson County) on all

remaining claims on July 22, 2002.

5
Other new defendants were added as well, but they were
dismissed from the case for lack of proper service.
6
Barnes’s motion, which had been filed on December 26,
2001, was denied as moot as to the Cedar Park and Round Rock
defendants, given the court’s grant of summary judgment in their
favor. Barnes’s motion was denied on the merits as to the
remaining defendants.

8
 Williamson County requested sanctions against Barnes in the

amount of $8,764 for legal fees expended in connection with

various motions and claims that the county described as

completely frivolous. In an order dated August 16, 2002, the

district court granted them $799, limited to expenses caused by

Barnes’s failure to appear at her deposition.

Barnes now appeals the judgment below. Her appellate brief

raises a number of instances of alleged error, and it obliquely

suggests many more. Barnes asserts that the district court

committed several errors of law in granting the defendants’

motions for summary judgment. In addition, Barnes also finds

error in the lower court’s administrative handling of her case,

including its rulings on various motions.

II. STANDARD OF REVIEW

We review the district court’s grant of summary judgment de

novo, applying the same standard as the district court. See Vela

v. City of Houston, 276 F.3d 659, 666 (5th Cir. 2001). Summary

judgment is proper when there is no genuine issue as to any

material fact and the moving party is entitled to judgment as a

matter of law. FED. R. CIV. P. 56(c). We view the evidence in

the light most favorable to the non-movant, see Coleman v.

Houston Indep. Sch. Dist., 113 F.3d 528, 533 (5th Cir. 1997), but

the non-movant must go beyond the pleadings and bring forward

specific facts indicating a genuine issue for trial, see Celotex

9
Corp. v. Catrett, 477 U.S. 317, 324 (1986). If the non-movant

fails to present facts sufficient to support an essential element

of his or her claim, summary judgment should be granted. See id.

at 322-23.

The district court’s rulings on various matters relating to

case management and discovery are, as a general matter, reviewed

for abuse of discretion. See, e.g., Pierce v. Underwood, 487

U.S. 552, 558 n.1 (1988); McKethan v. Tex. Farm Bureau, 996 F.2d

734, 738 (5th Cir. 1993). To the extent that this general

standard of review applies differently with respect to different

types of rulings, we will discuss the relevant variations as

appropriate.

III. DISCUSSION

As we have said, Barnes raises a number of issues on appeal.

At one point, she states that she is appealing “all . . . claims

as to all Appellees.” Barnes cannot thereby succeed in giving us

an open-ended mandate to review the whole course of the

proceedings below. We review only those points of purported

error that the appellant designates and actually argues; other

issues are considered waived. See FED. R. APP. P. 28(a)(5), (9)

(requiring that briefs designate issues for review and provide

contentions, reasons, and citations); Trevino v. Johnson, 168

F.3d 173, 181 n.3 (5th Cir. 1999) (stating that inadequately

10
argued issues are waived). Applying that rule, we find nine

issues on appeal.

The district court’s grant of summary judgment to the

defendants rested in large part on Barnes’s failure to plead her

claims properly and support her allegations with competent

summary judgment evidence. Barnes argues that she was unable to

meet those demands because of the court’s handling of the case.

We therefore begin by reviewing those procedural rulings of the

district court that Barnes argues thwarted her ability to make

out her case. We then turn to her several points of error that

address substantive legal questions related to the grant of

summary judgment. Last, we consider the district court’s

sanctions order.

A. Amendment of Pleadings

Barnes had repeatedly been given leave to amend her

pleadings. On April 15, 2002, she requested leave to file a

Fifth Amended Complaint that would add claims involving new

events and defendants. The district court denied this request by

order dated May 24, 2002. Barnes argues that the district court

abused its discretion in doing so.

Although the general rule is that leave to amend pleadings

should be freely granted when justice requires, see FED. R. CIV.

P. 15(a), in this case Barnes was also required to show “good

cause” why her request should be granted, because her request

11
came after the scheduling order’s January 27 deadline for

amendments. See FED. R. CIV. P. 16(b) (providing that a

scheduling order “shall not be modified except upon a showing of

good cause”); S&W Enters. v. SouthTrust Bank of Ala., 315 F.3d

533, 536 (5th Cir. 2003) (stating that “Rule 16(b) governs

amendment of pleadings after a scheduling order deadline has

expired. Only upon the movant’s demonstration of good cause to

modify the scheduling order will the more liberal standard of

Rule 15(a) apply to the district court’s decision to grant or

deny leave.”).7 Having assumed that Barnes could show good cause

under Rule 16(b), the district court nonetheless found that

Barnes’s request to amend should be denied.

The district court did not abuse its discretion in denying

Barnes’s request. Even if we assume, as did the district court,

that Barnes can overcome the hurdle of Rule 16(b), her request

did not satisfy the requirements of Rule 15(a). While Rule 15(a)

provides a rather liberal standard for granting leave to amend,

7
Barnes points out that she had previously moved for
leave to amend on December 5, 2001, before the scheduling order’s
deadline. The December 5 motion was not accompanied by a
proposed amended complaint, nor did it describe when she wished
to file one. Rather, the motion prayed generally for leave to
file an indeterminate number of “further amendments” at
unspecified future dates when “Plaintiffs have adequate time to
accomplish this task and as discovery develops.” The district
court did not abuse its discretion in denying this extraordinary
open-ended request. The district court’s decision was justified
by the same considerations that, as we explain in the text,
justified the denial of Barnes’s more conventional April 15
motion for leave to amend.

12
it has long been recognized that certain factors weigh against

granting leave. These factors include “undue delay, bad faith or

dilatory motive on the part of the movant, repeated failure to

cure deficiencies by amendments previously allowed, undue

prejudice to the opposing party by virtue of allowance of the

amendment, [and] futility of amendment.” Foman v. Davis, 371

U.S. 178, 182 (1962). The district court found that several of

these factors were present, and we find that its determination is

amply supported by the record. For example, we note that

Barnes’s previous amended complaints did not comport with the

district judge’s instructions to streamline and clarify her

averments. On the contrary, the amended complaints continued to

make conclusory allegations and refer to extraneous matters.

Barnes’s motion for leave to amend suggested that further

amendments would be necessary as discovery revealed more

defendants and further wrongs. Given the risk of an unending

stream of unsatisfactory amendments, we conclude that the

district court did not abuse its discretion in finally calling a

halt to the amendment process.

B. Discovery Issues

Barnes has strenuously contended that her efforts at

discovery were continually thwarted by the defendants and the

magistrate judge.8 To the extent that many of her complaints are

8
Barnes complains that most of the discovery matters
were referred to the magistrate judge rather than handled

13
directed toward the defendants’ conduct, we are not the proper

audience. The defendants may have been recalcitrant and stingy

in discovery; if so, Barnes had the option of seeking court

orders compelling discovery. See FED. R. CIV. P. 37(a). To the

extent that her arguments are directed against the court’s

rulings on discovery matters, we review those rulings for abuse

of discretion, bearing in mind that the trial court enjoys broad

latitude in supervising the conduct of discovery. See McKethan

v. Tex. Farm Bureau, 996 F.2d 734, 738 (5th Cir. 1993); Landry v.

Air Line Pilots Ass’n Int’l, 901 F.2d 404, 436 & n.114 (5th Cir.

1990).

Barnes’s argument on appeal does not so much focus on errors

in particular discovery rulings but instead attacks the court’s

general pattern of refusing to help her achieve meaningful

discovery. Fairly early in the proceedings, the magistrate judge

granted the defendants a temporary protective order against

Barnes’s discovery requests. His stated reason for doing so was

that the parties had not yet engaged in a discovery conference;

Rule 26(d) provides that parties cannot seek discovery until such

a conference has occurred. See FED. R. CIV. P. 26(d), (f).

Barnes has not identified any error in this ruling. The case

then proceeded for the next several months with relatively little

personally by the district judge. The procedure used below was
proper, however, for such matters can be referred to the
magistrate judge without the permission of the parties. See 28
U.S.C. § 636(b)(1) (2000).

14
activity on the discovery front. It was only in the last days

leading up to the May 27, 2002, discovery deadline that Barnes

began to press the issue with a motion to compel, despite the

fact that Barnes had received the defendants’ objections to her

discovery requests months earlier. The magistrate judge denied

Barnes’s motion to compel in almost every respect. Since many of

her discovery requests were facially overbroad and irrelevant, we

see no abuse of discretion in this decision. Given Barnes’s

delay in seeking the court’s assistance in compelling discovery,

we do not accept her argument that the magistrate judge can be

blamed for the difficulties she encountered in trying to gather

evidence before the close of discovery.

C. Delay in Ruling on Barnes’s Motion for Partial Summary
Judgment

Barnes moved for partial summary judgment on December 26,

2001. The district court did not rule on her motion until June

11, 2002, on which date the court granted summary judgment to the

Cedar Park and Round Rock defendants, who had moved for summary

judgment on March 1, 2002. The district court denied Barnes’s

motion as moot with respect to the Cedar Park and Round Rock

defendants and denied it on the merits as to the remaining

defendants (Davis and Williamson County).

Barnes argues that the district court erred in delaying its

ruling and that the delay impeded her ability to conduct

discovery. The defendants had resisted many of her discovery

15
requests by claiming immunity, Barnes explains, and so she sought

partial summary judgment in order to resolve that issue early in

the proceedings. Barnes asserts that because the district court

did not rule on her motion for partial summary judgment in a

timely fashion, the defendants continued to resist discovery and

thwart her efforts to gather evidence with which to respond to

the defendants’ own subsequent motions for summary judgment.9

We do not believe that the district court’s delay was an

abuse of discretion. We have often remarked that the district

court enjoys a broad latitude over matters such as case

management and scheduling. See, e.g., United States v. Hughey,

147 F.3d 423, 431 (5th Cir. 1998); Guillory v. Domtar Indus., 95

F.3d 1320, 1328-29 (5th Cir. 1996). The timing of the court’s

ruling on a motion can in some rare cases amount to an abuse of

discretion, but only if the district court’s timing prejudices a

party. See, e.g., Prudhomme v. Tenneco Oil Co., 955 F.2d 390,

393-96 (5th Cir. 1992) (holding that the district court abused

its discretion when it decided on the morning of trial to allow

the plaintiff to pursue a new theory of recovery when the

defendant had relied on the court’s earlier dismissal of an

attempt to add that theory).

9
As we have already explained, Barnes had open to her at
all times the option of using motions to compel, but it was not
until very late in the proceedings that she used that option.

16
 In this case, we cannot say that Barnes was prejudiced by

the district court’s delay in ruling on her motion for partial

summary judgment. With respect to most of the issues on which

Barnes sought summary judgment, it is not clear how a favorable

decision would have advanced her objectives. For example, Barnes

asked for summary judgment on the question of whether she had

made an adequate appearance in the municipal court on her traffic

ticket. She has repeatedly sought vindication on this issue, but

in truth it is not central to the case. The defendant officials

can still enjoy qualified immunity from Barnes’s suit even if the

court staff incorrectly believed that Barnes had failed to

appear. Of the issues on which she sought summary judgment, the

only one that is arguably related to an immunity defense is her

request for summary judgment on whether the defendants had “no

legal basis, factual basis, or jurisdictional basis” to arrest

her. To the extent that this issue was material to her claims,

the district court simply rejected Barnes’s position for the

reasons set out in its June 11, 2002, decision granting summary

judgment to the Cedar Park and Round Rock defendants. Thus, it

cannot be said that Barnes’s case was harmed by the district

court’s delay in ruling on her motion.

We turn now to those points of error that go to the

substance of the district court’s summary judgment rulings.

D. Free Speech

17
 Barnes claims that her May 29, 2000, letter to the Cedar

Park municipal court was speech protected by the First Amendment

to the United States Constitution and the cognate provision of

the Texas Constitution. The court staff, in contrast, viewed the

letter as a threat against them, and Barnes was eventually

arrested for making a terroristic threat in violation of Texas

Penal Code § 22.07. The governmental reaction to the letter,

says Barnes, violated her right to free speech. Moreover, since

the letter was constitutionally protected, the arrest warrant,

her subsequent arrest, and her temporary confinement in jail were

all illegal.

The district court took care to explain that the various

defendants who responded to Barnes’s letter were shielded by

immunity. First, absolute immunity cloaks Judge Oswalt, who,

sitting as magistrate, signed the arrest warrant and set Barnes’s

bond. Since these are acts of the type normally performed by

judges, they are judicial acts shielded by absolute judicial

immunity from liability under both federal and state law. See

Stump v. Sparkman, 435 U.S. 349, 362 (1978); Boyd v. Biggers, 31

F.3d 279, 284-85 (5th Cir. 1994); Turner v. Pruitt, 342 S.W.2d

422, 423 (Tex. 1961); Garza v. Morales, 923 S.W.2d 800, 802 (Tex.

App.–-Corpus Christi 1996, no writ). This judicial immunity also

extends to other defendants, such as Clerk Thompson, to the

18
extent that they were acting at the judge’s direction. Tarter v.

Hury, 646 F.2d 1010, 1013 (5th Cir. 1981).10

All of the other officials in this suit are entitled to

assert the defense of qualified immunity. With respect to

federal claims under § 1983, this means that they cannot be held

liable unless their conduct was objectively unreasonable in light

of clearly established law. See Harlow v. Fitzgerald, 457 U.S.

800, 818 (1982); Hare v. City of Corinth, 135 F.3d 320, 325 (5th

Cir. 1998). Under Texas law, which is in relevant respects

similar, officials are immune as long as their actions are

consistent with what reasonably prudent officials could have

believed was appropriate at the time. See City of Lancaster v.

Chambers, 883 S.W.2d 650, 655-57 (Tex. 1994).

On appeal, Barnes argues that no reasonable official could

fail to realize that her letter was protected speech. Although

Barnes does not completely spell out the argument, this is

presumably meant as an attack upon the qualified immunity defense

applicable to some of the defendants. If that is her argument,

we must disagree with her. A reasonable official could believe

that Barnes had violated the terroristic threat statute. The

statute is violated if a person threatens violence to another

with the intent to: 1) provoke a reaction by emergency agencies,

10
Barnes suggests that judicial immunity is not available
in this case because the municipal court lacked all jurisdiction
over the crime of making a terroristic threat. This issue is
discussed infra in Part III.E.

19
2) place a person in fear of imminent bodily injury, 3) interrupt

the use of a building, or 4) interrupt public services. TEX.

PENAL CODE ANN. § 22.07. The requisite intent can be inferred from

the acts and words of the speaker. Cook v. State, 940 S.W.2d

344, 347 (Tex. App.-–Amarillo 1997, pet ref’d). Regardless of

Barnes’s true intent, a reasonable official who read her May 29

letter could have concluded that Barnes intended to create a fear

of imminent bodily harm when Barnes asked whether the court

employees were “WILLING [to] DIE” for not recalling the failure-

to-appear warrant; the same reaction might reasonably follow from

reading that Barnes would consider herself “AT WAR AND WILL ACT

ACCORDINGLY.” Likewise, there was reasonable cause to perceive

an intent to put law enforcement officers into fear of imminent

harm if they tried to serve Barnes with the failure-to-appear

warrant: “I WILL FIGHT TO THE DEATH WITH ANYONE WHO TRIES TO PULL

ME FROM MY HOME, MY CAR, OR MY WORKPLACE!!! . . . IF I SEE ANY

UNIFORMED PEOPLE COME NEAR MY FAMILY, I WILL NOT WAIT TO ASK

QUESTIONS!” That these threats are for the most part

conditional–-that is, predicated upon the officials engaging in a

certain course of conduct–-does not mean that they necessarily

lack the imminence required under the statute. See id. at 347-

49. Whether or not Barnes actually had the intent necessary to

support a conviction under the statute, we cannot say that those

who read her letter reacted unreasonably in referring the matter

to the police and securing an arrest warrant.

20
 The terroristic threat statute has not been held

unconstitutional by any court, nor does it suffer from obvious

facial unconstitutionality. Reasonable officials are therefore

entitled to rely upon its validity without subjecting themselves

to liability in damages. See Vela v. White, 703 F.2d 147, 152-53

(5th Cir. 1983) (per curiam) (finding that qualified immunity was

proper where officials enforced a statute that had not been

declared unconstitutional); see also Dittman v. California, 191

F.3d 1020, 1027 (9th Cir. 1999); Swanson v. Powers, 937 F.2d 965,

969 (4th Cir. 1991).

E. The Municipal Court’s Jurisdiction

Barnes argues that the Cedar Park municipal court had no

jurisdiction to pursue the terroristic threat charge. According

to the Texas statutes, the jurisdiction of the municipal courts

does not extend to criminal cases involving offenses punishable

by imprisonment. See TEX. GOV’T CODE ANN. § 29.003 (Vernon 1988 &

Supp. 2003). Violation of the terroristic threat statute is,

depending upon which subsection is violated, at least a Class B

misdemeanor, see TEX. PENAL CODE ANN. § 22.07(b), which means that

it is potentially punishable by imprisonment, see id. § 12.22.

Thus, a terroristic threat charge apparently could not be

prosecuted in the Cedar Park municipal court.

21
 Barnes was not prosecuted in the municipal court, nor indeed

was she ever prosecuted at all.11 Thus, it is not immediately

clear why the jurisdiction of the municipal court is at all

relevant. We take Barnes to suggest that the court’s

jurisdiction is relevant to the availability of the absolute

judicial immunity claimed by some of the defendants. As the

Supreme Court has said, judicial immunity does not shield

otherwise “judicial” acts that are “taken in the complete absence

of all jurisdiction.” Mireles v. Waco, 502 U.S. 9, 12 (1991)

(per curiam).

We believe that Barnes’s arguments concerning the municipal

court’s jurisdiction conflate two separate questions. The fact

that the municipal court does not have jurisdiction to hear a

prosecution for a violation of the terroristic threat statute

does not mean that the court’s judges, who are also designated as

magistrates under Texas law, have no power as magistrates to

issue an arrest warrant for such an offense. Indeed, Texas law

suggests the opposite, for magistrates have the power and duty to

issue such process. See TEX. CODE CRIM. PROC. ANN. arts. 2.09,

2.10, 6.02, 7.01, 15.03 (Vernon 1977 & Supp. 2003). We thus find

11
Barnes at one point suggests that the absence of an
indictment or information means that her arrest was illegal and
without all jurisdiction. This is not correct, for an arrest
requires only a warrant or probable cause. The case cited by
Barnes explains that proper charging instruments are necessary to
confer jurisdiction to try a criminal case, not to effect an
arrest. See Cook v. State, 902 S.W.2d 471 (Tex. Crim. App.
1995).

22
Barnes’s arguments relating to the municipal court’s jurisdiction

to be without merit.

F. Illegal Search and Arrest

Barnes’s complaint alleged that her arrest on June 13, 2000,

was illegal in that Officer Richards did not possess a valid

arrest warrant; moreover, she claims, he conducted a search of

her office and effects without a search warrant. The district

court found that there could be no liability for the arrest

because Officer Richards had acted pursuant to a facially valid

arrest warrant. As to the alleged illegal search, the court

found that Barnes had offered no competent summary judgment

evidence to overcome Officer Richards’s sworn denials. On

appeal, Barnes repeats her assertions of illegality.

We agree with the district court’s analysis. Viewing the

summary judgment evidence in the light most favorable to Barnes,

the most the evidence shows is that Officer Richards lacked the

actual arrest warrant but instead had received a faxed copy of

documents from the Cedar Park police indicating that Cedar Park

held a warrant for Barnes’s arrest. Contrary to Barnes’s

suggestions, there is no requirement that an officer possess the

actual warrant; an arrest is legal if the officer acts under the

authority of a warrant of which he or she has reliable knowledge.

See United States v. McDonald, 606 F.2d 552, 553-54 (5th Cir.

1979) (per curiam); see also Case v. Kitsap County Sheriff’s

23
Dep’t, 249 F.3d 921, 930 (9th Cir. 2001). Texas law specifically

provides that the arresting officer need not have the warrant in

his possession. See TEX. CODE CRIM. PROC. ANN. art. 15.26; Cook v.

State, 470 S.W.2d 898, 899 (Tex. Crim. App. 1971). There is no

genuine dispute over the warrant’s apparent validity.

As to Barnes’s allegations that Officer Richards (and

possibly unnamed others) engaged in illegal searches and

ransacked her home, office, and vehicles, we agree with the

district court that Barnes failed to demonstrate the existence of

triable material facts. Officer Richards’s affidavit, appended

to his motion for summary judgment, denied conducting such

searches, except for looking in Barnes’s purse at the time of

arrest. Once Richards satisfied his initial burden of showing

the absence of any genuine issue of material fact, Barnes could

survive summary judgment only by designating specific facts in

the record that would create genuine issues for trial. Celotex,

477 U.S. at 324. Barnes did not produce such specific record

facts. Her affidavit does state, without elaboration, that

Officer Richards searched her person, belongings, and

surroundings at the time she was arrested. Although the absence

of detail makes it difficult to reach a firm conclusion, the

search she seems to describe would appear to be legal. See

United States v. Johnson, 846 F.2d 279, 281-84 (5th Cir. 1988)

(permitting the warrantless search of a closed briefcase incident

to arrest). There are of course important limitations on the

24
proper scope of a search incident to an arrest, but Barnes’s

evidence, if credited, does not provide any details that would

give us a basis to say that those bounds were overstepped. As

to her allegations that more expansive (and clearly illegal)

searches and ransacking took place while she was incarcerated,

her only evidence is her affidavit’s reassertion of the vague

allegations contained in her complaint.12 Such vague and

conclusory assertions cannot defeat a properly supported motion

for summary judgment. Bridgmon v. Array Sys. Corp., 325 F.3d

572, 577 (5th Cir. 2003).

G. Detention in Williamson County Jail

Barnes asserts that she was kept in jail for seven hours

after she posted bond and that Williamson County officials

subjected her to abuse during and after her detention. These

events serve as the predicate for several of her federal and

state claims.

None of the employees responsible for these particular acts

of asserted misconduct has been named as a defendant in this

12
Her affidavit’s most detailed account of the matter
would appear to be the following statement: “During my
incarceration, my home and vehicles were also searched and
ransacked. These defendants clearly took advantage of the
illegal incarceration to conduct an illegal search. This is
perhaps why I was wrongfully and illegally detained for an
additional seven hours after my bond was posted and my magistrate
warning waived.” The reader is left in the dark as to the
personal knowledge, if any, that supports Barnes’s belief.

25
case;13 only the county is a defendant. The district court

granted the county’s motion for summary judgment as to all

claims. With respect to Barnes’s claims under § 1983, the

district court first pointed out that the county cannot be held

liable on a theory of respondeat superior; instead, it is liable

only for wrongs attributable to official policy. See Monell v.

Dep’t of Soc. Servs., 436 U.S. 658, 691-95 (1978); Gonzalez v.

Ysleta Indep. Sch. Dist., 996 F.2d 745, 753-54 (5th Cir. 1993).

The district court then concluded that Barnes had not presented

any competent evidence that her alleged injuries had been the

result of an official policy or custom.

With regard to Barnes’s state law claims, the district court

pointed out that local government entities enjoy immunity under

Texas law except to the extent that the state legislature has

expressly waived it. See Guillory v. Port of Houston Auth., 845

S.W.2d 812, 813 (Tex. 1993). In enacting the Texas Tort Claims

Act, TEX. CIV. PRAC. & REM. CODE ANN. §§ 101.001-.109 (Vernon 1997 &

Supp. 2003), the legislature effected a limited waiver of

immunity. This waiver does not, however, extend to intentional

torts. See id. § 101.057; City of Hempstead v. Kmiec, 902 S.W.2d

118, 122 (Tex. App.–-Houston [1st Dist.], 1995, no writ). While

13
Some employees of Williamson County were dismissed from
the suit for lack of proper service of process. Barnes sought to
add other Williamson County employees in her Fifth Amended
Complaint, but, as discussed above, the district court denied her
request to do so.

26
some of the many causes of action listed in Barnes’s complaint

announce themselves as negligence claims, the harms she suffered

at the hands of Williamson County’s employees–-illegal detention

and harassment--are in fact claims sounding in intentional tort.

The district court pointed out that a plaintiff cannot avoid the

bar of governmental immunity simply by describing essentially

intentional conduct as an act of negligence. See Tex. Dep’t of

Pub. Safety v. Petta, 44 S.W.3d 575, 580 (Tex. 2001); Holland v.

City of Houston, 41 F. Supp. 2d 678, 712-13 (S.D. Tex. 1999).

In the section of her appellate brief devoted to this topic,

Barnes recites the factual allegations relating to her detention

and then declares that the district court erred in granting

Williamson County’s motion for summary judgment. She does not,

however, identify how the district court might have erred. Nor

does she direct us to any summary judgment evidence that would

produce a genuine issue of material fact necessitating resolution

at trial. Barnes’s inadequate presentation of the argument could

properly be held to effect a waiver of the issue. See FED. R.

APP. P. 28(a)(9) (requiring that an argument contain “contentions

and the reasons for them, with citations to the authorities and

parts of the record on which the appellant relies”); Jason D.W.

v. Houston Indep. Sch. Dist., 158 F.3d 205, 210 n.4 (5th Cir.

1998).

Nonetheless, we have conducted our own review of Williamson

County’s motion for summary judgment and Barnes’s response,

27
together with the evidence provided in support of each. We

conclude that Barnes did not produce evidence sufficient to

withstand Williamson County’s motion for summary judgment. In

particular, regarding her federal claims, Barnes failed to show

that the wrongs she allegedly suffered were the result of county

policy. Her affidavit includes assertions that the county

maintains illegal policies, but such conclusory statements are

insufficient to withstand summary judgment. See Spiller v. City

of Texas City, Police Dep’t, 130 F.3d 162, 167 (5th Cir. 1997).

Barnes’s most probative evidence was an affidavit from a former

Williamson County sheriff’s deputy, which details some of the

department’s inner workings. Viewing the affidavit in the proper

summary judgment light, it paints a dim portrait of the

department and arguably evinces the existence (or at least former

existence) of several malign informal practices. The affidavit

does not, however, reveal any personal knowledge of the existence

of policies that bear on the harms suffered by Barnes. Indeed,

the closing paragraphs of the affidavit suggest that the

particular wrongs identified by Barnes–-being held without a

valid warrant, being held after posting bond, and so forth–-would

violate department policy. In sum, we agree with the district

court that Barnes did not produce specific and competent evidence

that would create a genuine issue of fact with respect to crucial

elements of her federal claims.

28
 Turning to Barnes’s state claims, her response to Williamson

County’s motion for summary judgment did not explain how her

claims could survive, given that the Texas Tort Claims Act does

not waive governmental immunity for officials’ intentional torts.

See TEX. CIV. PRAC. & REM. CODE ANN. § 101.057. We agree with the

district court that the facts surrounding Barnes’s claims against

Williamson County sound in intentional tort. Since Barnes does

not allege any conduct that is factually distinct from the

conduct that supports the intentional tort claims, the fact that

her complaint includes generalized allegations of negligence on

the part of all defendants is insufficient to avoid Williamson’s

immunity defense. See Petta, 44 S.W.3d at 580.

H. Defamation Claims Against Davis

While Barnes wishes to mount a general appeal of all aspects

of the district court’s grant of defendant Davis’s motion for

summary judgment, the only issue actually argued in her brief is

her defamation claim. Accordingly, this is the only point we

shall address.

Barnes’s complaint contains some general allegations that

Davis (along with others) published defamatory material to

various unspecified persons at various unspecified times; the

most specific allegation relating to the defamation claim is that

Davis sent defamatory letters or faxes to Barnes’s office in the

fall of 2000. Davis moved for summary judgment, claiming that

29
Barnes had no evidence that any defamatory statements were

published to third parties; Davis claimed, moreover, that any

defamatory statements were privileged by virtue of being made in

connection with judicial proceedings then pending in the state

court. (As we noted earlier, Barnes had sued Williamson County

before, and Davis has at various times represented the county and

its employees.)

Barnes’s response to Davis’s motion for summary judgment

failed even to identify the particular document(s) or

statement(s) alleged to be defamatory. This failure to identify

the factual basis of her claim would itself have justified

granting Davis’s motion for summary judgment. See Celotex, 477

U.S. at 322-23. By examining the materials appended to Davis’s

motion for summary judgment, we believe we have been able to

identify the statements that Barnes believes are defamatory. The

possibly defamatory items consist of several letters that Davis

faxed or mailed to Barnes’s office in the fall of 2000 in

connection with her state suit against Williamson County. Some

of these letters were apparently copied to other persons involved

in the case, including the judge. Barnes claims that the letters

to her office were viewed by her office staff, but she did not

provide names of any employees or offer affidavits from them.

30
The possibly defamatory items express Davis’s view that, based

upon her conduct, Barnes may be mentally disturbed.14

The district court granted Davis’s motion for summary

judgment, noting first that Barnes had failed even to identify

Davis’s allegedly defamatory language. After assuming for the

sake of argument that Davis had sent defamatory material to

Barnes’s office, the district court found no evidence of

publication to a third party. If Barnes’s employees had seen the

letters, the court remarked, it would have been a simple matter

to prove it with an affidavit from one of them.

Barnes argues on appeal that there was sufficient evidence

of publication, inasmuch as the letters indicate on their face

(in the “cc:” field) that they were copied to third parties.

Assuming that there was adequate evidence of publication,

Barnes’s claim still fails. Under Texas law, statements made in

the course of judicial proceedings are absolutely privileged from

14
Davis also expresses this view in a letter to the state
bar disciplinary committee in connection with a grievance that
Barnes had filed against him. It is not clear that this item
falls within the allegations in Barnes’s complaint, as it was
sent in February 2001. The only remotely specific allegations in
Barnes’s complaint refer to letters sent to her office in the
fall of 2000. Barnes has, however, alluded at times to Davis’s
conduct in the grievance proceedings. Even if we assume that
this letter is properly a part of the case, any defamation claims
based upon it must fail because of the absolute privilege that
shields all statements made in judicial and quasi-judicial
proceedings. Proceedings before the state bar’s grievance
committee have been held to qualify for that absolute privilege.
See Odeneal v. Wofford, 668 S.W.2d 819, 820 (Tex. App.–-Dallas,
1984, writ ref’d n.r.e.).

31
defamation liability, regardless of the negligence or even malice

with which they are made. See, e.g., James v. Brown, 637 S.W.2d

914, 916 (Tex. 1982). The privilege extends even to

communications made by an attorney to persons who are not

directly involved in the proceedings, as long as the

communications are related to the attorney’s representation of a

client in pending or proposed judicial proceedings. See Watson

v. Kaminski, 51 S.W.3d 825, 827 (Tex. App.–-Houston [1st Dist.]

2001, no pet.); Thomas v. Bracey, 940 S.W.2d 340, 342-44 (Tex.

App.–-San Antonio 1997, no writ). This privilege was one basis

of Davis’s motion for summary judgment. There does not appear to

be any indication--and Barnes certainly presented no competent

summary judgment evidence–-that the privilege does not cover the

statements at issue here, which were made in relation to then-

pending litigation.

I. Sanctions Order

Williamson County sought sanctions of over $8,000 for

expenses incurred in responding to various motions and in

connection with Barnes’s failure to appear at her duly noticed

deposition on May 20, 2002. In an order dated August 16, 2002,

the district judge awarded sanctions in the amount of $799, which

he found to be a reasonable estimate of the expenses directly

caused by Barnes’s failure to appear at her deposition. The

32
court denied Williamson County’s motion for sanctions in all

other respects.

Barnes complains of both the procedure and the resulting

order. Barnes had filed a forty-page response to the motion for

sanctions, accompanied by a motion to exceed the usual page

limits. The district court denied the motion to exceed the page

limits and ordered Barnes to file a ten-page response to the

motion for sanctions. Barnes asserts on appeal that she never

received notice of that order, and thus she did not know that her

original, lengthy response had been rejected. This, she

suggests, violated due process. Yet Barnes’s assertion that she

was not given notice of the rejection of her original response is

impossible for us to verify. In any event, it is the type of

argument that should have been made in the first instance to the

district court, such as in a motion to reconsider.15

If a party fails to attend a deposition, the court “shall”

order that party to pay the opposing party’s expenses unless the

failure to attend was “substantially justified.” FED. R. CIV. P.

37(d). In explaining that Barnes’s failure to appear was not

15
Barnes repeatedly points out that the district judge
and magistrate judge decided many motions, including the motion
for sanctions, without holding a live hearing. But due process
requires only a meaningful opportunity to present one’s position,
and there is no requirement to hold a live hearing on the types
of motions that the lower court decided on the papers. See,
e.g., Fahle v. Cornyn, 231 F.3d 193, 196 (5th Cir. 2000);
Merriman v. Sec. Ins. Co. of Hartford, 100 F.3d 1187, 1191-92
(5th Cir. 1996).

33
substantially justified, the district court noted, among other

factors, that she had not filed a motion for a protective order.

Barnes argues vigorously on appeal that she had in fact filed a

motion for a protective order before the deposition. From our

review of the docket and the record, it indeed appears that she

had filed, on May 17, a combined motion to quash and motion for a

protective order. Nonetheless, the mere act of filing a motion

for a protective order does not relieve a party of the duty to

appear; the party is obliged to appear until some order of the

court excuses attendance. See King v. Fidelity Nat’l Bank of

Baton Rouge, 712 F.2d 188, 191 (5th Cir. 1983) (per curiam);

Hepperle v. Johnston, 590 F.2d 609, 613 (5th Cir. 1979); Goodwin

v. City of Boston, 118 F.R.D. 297, 298 (D. Mass. 1988). Barnes

had received notice of the deposition on May 8, yet she did not

file her motion for a protective order until May 17, the Friday

preceding her Monday morning deposition. Given the timing,

Barnes could hardly have expected in good faith to receive a

court order excusing her attendance. Therefore, we cannot say

that the district court abused its discretion in finding that

Barnes’s failure to appear was not substantially justified.

IV. CONCLUSION

For the foregoing reasons, the district court’s judgment and

order of sanctions are AFFIRMED. Appellees’ motion to file a

brief in response to Barnes’s reply brief is DENIED as moot.

34