United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
October 17, 2005
FOR THE FIFTH CIRCUIT
Charles R. Fulbruge III
Clerk
No. 04-10767
CECIL BOYD BOWDEN, JR.,
Plaintiff-Appellant,
versus
CITY OF ELECTRA, ET AL.,
Defendants,
CITY OF ELECTRA; JOSEPH SCHUTZE; DUSTIN BARTRAM; JUSTIN KAISER;
OFFICER JOHNSON; CODY SHAW, Individually and Electra Interim
Chief of Police; ALAN BOYD, Individually and in his official
capacity as Chief of Police,
Defendants-Appellees.
Appeal from the United States District Court
for the Northern District of Texas
(USDC No. 7:02-CV-108-R)
Before REAVLEY, HIGGINBOTHAM, and GARZA, Circuit Judges.
PER CURIAM:*
Cecil Bowden, Jr. complains of harassment in his suit against
local police officials under § 1983. He appeals the district
court’s grant of summary judgment to the police officers. We
affirm.
I
*
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should not be published and is not precedent except under the limited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 City of Electra, Texas is one of the several small towns
lying on the Texas-Oklahoma border. Cecil Bowden, Jr. alleges that
over the last few years, the Electra Police Department routinely
harassed and detained him without probable cause or reasonable
suspicion. While citing eleven incidents, Bowden does not dispute
that only one occurred within the applicable statute of
limitations,1 and so we focus on that single event, leaving the
others as non-actionable historical background.
Bowden claims that on May 15, 2000, two City of Electra police
officers stopped him while he walked near his home. He consented
to a search of his person, but the officers found nothing. Yet, he
says, he was detained “for over an hour” while the officers checked
for federal warrants. While the officers were awaiting the results
of that check, Joseph Schutze, another City of Electra police
officer, arrived on the scene. Bowden claims that Schutze told him
that he smelled anhydrous ammonia2 coming from Bowden’s residence3
and asked for permission to search the house and, when Bowden
1
See Ali v. Higgs, 892 F.3d 438, 439 (5th Cir. 1990) (holding that, for
§ 1983 actions, the applicable statute of limitations is borrowed from the state
in which the action is filed). In Texas, the applicable period is two years.
TEX. CIV. PRAC. & REM. CODE § 16.003(a). Bowden’s complaint was filed on May 14,
2002. The only event within the statute of limitations is the event allegedly
occurring on May 15, 2000.
2
Although anhydrous ammonia’s intended use is as an agricultural
fertilizer, it is also a key ingredient in the production of methamphetamine.
3
Bowden’s complaint and Bowden’s summary judgment evidence are
inconsistent on this point. Bowden’s complaint indicates that Officer Schutze
smelled anhydrous ammonia emanating from Bowden’s residence. Bowden’s summary
judgment evidence - the affidavit submitted by Officer Schutze to the magistrate
- indicates that it was “Officer D. Bartram #206" and “Officer Kaiser # 204" that
detected the odor of anhydrous ammonia coming from Bowden’s residence.
2
refused, that Bowden was handcuffed and placed in the back of a
police car, where he sat for over an hour until the police obtained
a search warrant.
Bowden alleges that Officer Schutze lied to obtain the
warrant, falsely stating in his supporting affidavit that he
smelled anhydrous ammonia at Bowden’s residence. After the warrant
was obtained, Bowden alleges that he was arrested, taken to jail,
and held on a $1.5 million bond until his release one year later.
On May 14, 2002, Bowden brought suit under 42 U.S.C. § 1983
against the City and various members of its police department,4
alleging violations of the Fourth and Fourteenth Amendments and
similar provisions of the Texas Constitution and making several
claims for negligent hiring, retention, training, and supervision,
which were dropped. As required by the scheduling order, the
parties filed a joint motion for summary judgment on September 15,
2003. Two months later, on November 12, 2003, Bowden filed a
motion to amend his response to the defendant’s motion for summary
judgment. In this motion, Bowden attempted to place before the
district court additional evidence rebutting the defendants’ motion
for summary judgment. On June 3, 2004, the district court granted
the defendants’ motion and rendered judgment in their favor,
4
Although it is unclear in what capacity some of the defendants were sued,
each defendant asserted qualified immunity in his answer. The issue of qualified
immunity was not addressed by the district court, as it found that Bowden had
failed to establish a violation of his constitutional rights. See Hope v.
Pelzer, 536 U.S. 730, 736 (2002) (“The threshold inquiry a court must undertake
in a qualified immunity analysis is whether plaintiff’s allegations, if true,
establish a constitutional violation.”).
3
dismissing Bowden’s remaining state and federal constitutional
claims with prejudice.5 That same day, the district court also
denied Bowden’s motion to amend his response to the defendants’
motion for summary judgment. On June 24, 2004, Bowden timely filed
a notice of appeal from the final judgment rendered on June 3.
Then, on June 24, Bowden filed a motion for relief from judgment
under Rule 60(b),6 which the district court denied on October 26,
2004. This Court has jurisdiction under 28 U.S.C. § 1291.
Bowden argues that the district court’s judgment should be
reversed on six different grounds. We address these in turn.
II.
Bowden first argues that the district court erred in refusing
to allow him to amend his response to the defendants’ motion for
summary judgment. Bowden argues that material knowledge came to
his attention on or after October 17 and that he filed his motion
to amend on November 8, which the district court denied on June 3,
2004, the same day that it granted summary judgment to the
defendant. We review the district court’s denial of the motion for
5
The district court held that Bowden’s claims under the Texas Constitution
were duplicative of his claims under the Federal Constitution. Because neither
party on appeal has addressed the Texas Constitution apart from the Federal
Constitution, we will not address them separately, focusing solely on the Federal
Constitution.
6
Bowden was unable to file his motion under Rule 59(b), which requires
that any motion to alter or amend a judgment be filed “no later than 10 days
after entry of the judgment.” FED. R. CIV. P. 59(e).
4
abuse of discretion.7
Bowden sought to introduce evidence that Corrin McGrath, a
City official, conducted an “internal investigation” into the
Electra Police Department. In a deposition in an unrelated lawsuit
taken in November of 2002, McGrath stated that evidence in Bowden’s
case was “missing” or “tainted” or “corrupted” in some way,
requiring that the charges against Bowden be dropped. Bowden
claims that he fortuitously discovered the deposition through a
personal relationship between his counsel and plaintiff’s counsel
in that case.
The district court did not abuse its discretion in denying
Bowden’s motion. First, Bowden does not explain the relevance of
the evidence, aside from an assertion that it shows “actual
7
See Lac du Flambeau Band of Lake Superior Chippewa Indians v. Stop Treaty
Abuse-Wisconsin, Inc., 991 F.2d 1249, 1257 (7th Cir. 1993); see also Pfeil v.
Rogers, 757 F.2d 850, 858 (7th Cir. 1985) (“[A] decision to disregard all
materials submitted after a reasonable filing deadline is certainly not an abuse
of discretion because it allow[s] the district court to preserve the moving
party’s right to respond to the resisting party’s argument and to decide the
summary judgment motion in a timely fashion.”). This standard is consistent with
the standard we use for reviewing a denial of a motion to amend pleadings, see
Lowrey v. Texas A&M Univ. Sys., 117 F.3d 242, 245 (5th Cir. 1997), a denial of
a motion to alter or amend a judgment under Rule 59(e) due to alleged newly
discovered evidence, Hale v. Townley, 45 F.3d 914, 921 (5th Cir. 1995); see also
Lavespere v. Niagara Mach. & Tool Works, Inc., 910 F.2d 167, 174 (5th Cir. 1990),
and a denial of a motion for relief under Rule 60(e) due to evidence not
considered by the district court, see Seven Elves, Inc. v. Eskenazi, 635 F.2d
396, 401-03 (5th Cir. 1981). Bowden mistakenly argues that Hale, with its list
of four factors to consider, specifically controls here; however, the motion in
that case was a Rule 59(e) motion because it was filed after the district court
rendered judgment. Here, the district court ruled on the motion before or
contemporaneously with its ruling on the motion for summary judgment. Thus, we
review its decision for simple abuse of discretion. However, the factors
announced in Hale are relevant for our analysis here, and the practical
difference between the Hale “test” and a simple abuse of discretion test may be
minimal.
5
knowledge that the evidence against Bowden was ‘tainted’ or
‘corrupted’ in some way,” that it speaks to the “policies and
practices of the City,” and that it is “important.” The evidence
does not suggest an official policy or custom, and no policy or
custom that is directly related to Bowden’s underlying claims.8
Bowden’s bare assertion to the contrary is insufficient. In
addition, McGrath’s testimony offers no support for Bowden’s claim
of an “internal investigation.” Moreover, Bowden did not refer to
the evidence in his proposed amended response other than to set out
the general basis of the testimony in the facts section.
Second, Bowden has not shown why he could not have introduced
this evidence initially. He claims that he did not have “access”
to the evidence when the motion for summary judgment was filed on
September 15, 2003, because McGrath did not become the City
Administrator9 until after the events involving Bowden occurred, in
May of 2000. But he never contradicts the defendants’ allegation
that McGrath was in office later, when Bowden was released from
jail. As the defendants point out, it seems likely that Bowden
would have been told by someone that he was being released and not
tried because of evidentiary problems; he should have sought
evidence from McGrath then. And even if Bowden were not told at
8
See Monell v. Dep’t of Soc. Serv., 436 U.S. 658 (1978) (discussing the
appropriate standard for municipality liability under § 1983).
9
Bowden claims that McGrath was the City Administrator, while the
defendants claim that he was Chief of Police. However, this dispute is
irrelevant here.
6
that time that evidentiary problems led to his release, he should
have, for purposes of this case, inquired as to why he was
released. A simply inquiry would have revealed the answer and led
a reasonable person to interview McGrath, or someone else, who
could have provided the evidence that Bowden now claims is
relevant. Litigants cannot expect evidence to fall into their
laps.
The district court did not abuse its discretion in refusing
Bowden’s request for permission to amend his response.
III.
Bowden next argues that the May 15, 2000 stop violated his
Fourth Amendment right to be free from unreasonable search and
seizure. He argues that both the initial stop and the subsequent
detention violated Terry v. Ohio.10 The district court’s analysis
follows:
With regard to his stop, Plaintiff alleges that his
detention on May 15, 2000, by Electra police officers was
neither temporary nor reasonably related to the
circumstances justifying the stop. Relying on Terry v.
Ohio, 392 U.S. 1 (1968), Plaintiff claims that Defendants
violated the Fourth Amendment because the investigative
detention to which he was subjected was unreasonable and
unnecessarily lengthy. Under Terry, reasonableness of a
seizure and search requires that “the officer’s action
was justified at its inception, and . . . it was
reasonably related in scope to the circumstances which
justified the interference in the first place.”
Plaintiff, in making his claim, never articulates the
reason for his stop. He also does not aver that there
was no reason for his stop. No summary judgment evidence
10
392 U.S. 1 (1968).
7
explains why Plaintiff was stopped, so it is therefore
impossible to determine whether any ensuing search was
reasonably related to the initial justification for the
stop. Rather, Plaintiff contends that he voluntarily
empted his pockets and was detained for an hour while
officers checked his criminal record. It does not appear
that a body search was conducted at that time, as
Plaintiff voluntarily empted his pockets and declined to
consent to the search of his residence. Defendants are
entitled to summary judgment as to this claim.
We review de novo the district court’s findings of reasonable
suspicion and reasonableness of the stop.11
Regarding the initial stop, Bowden argues that the district
court erred in placing the burden of proving the reasons for the
stop on him, rather than the defendants.12 Bowden relies on
language in Terry v. Ohio, which provides that “in justifying the
particular intrusion the police officer must be able to point to
specific and articulable facts which, taken together with rational
inferences from those facts, reasonably warrant that intrusion.”13
Terry involved a motion to suppress seized evidence in a criminal
case where the state must justify the seizure.14 In contrast, a
plaintiff in a suit filed under 42 U.S.C. § 1983 has the burden of
11
United States v. Michelletti, 13 F.3d 838, 841 (5th Cir. 1994).
12
The defendants argue on appeal that “Bowden never alleged at the trial
court that the initial stop was illegal.” A review of Bowden’s complaint and
response to defendants’ motion for summary judgment indicates that this is
correct. However, the district court addressed the validity of the initial stop,
so we do as well.
13
Terry, 392 U.S. at 21.
14
Id.
8
proving each element of the constitutional violation.15 He did not
shoulder that burden. As the district court pointed out, Bowden
did not allege a reason for the stop or that it was without reason.
The district court did not err in granting summary judgment to the
defendants on this Fourth Amendment claim.
Bowden also urges that his one-hour detention was unreasonable
under Terry.16 Again, Bowden’s claims must fail because he has
failed to present any evidence to sustain his burden of proof under
§ 1983. Bowden has presented no evidence accounting for (nor has
he even alleged) the reasons for the initial detention or the
subsequent detention; he has not explained why the one-hour delay
was unreasonable. He does not explain why the officers did not
have reasonable suspicion throughout the hour; indeed, the existing
evidence - that Bowden had been stopped many times before, that the
officers smelled anhydrous ammonia, that Bowden was a known
methamphetamine user and dealer - suggests that the officers did
15
See Hand v. Gary, 838 F.2d 1420, 1424 (5th Cir. 1988) (“We deal with
both constitutional theories [malicious prosecution and false arrest], and find
that under each theory, . . . Plaintiff failed to prove a constitutional
violation.”); see also Gomez v. Whitney, 757 F.2d 1005, 1006 (9th Cir. 1985) (“A
prerequisite to recovery under [§ 1983] is that the plaintiff prove that the
defendants deprived him of a right secured by the Constitution and the laws of
the United States.”); Clark v. Mann, 562 F.2d 1104, 1117 (8th Cir. 1977) (“Where,
as here, suit is brought pursuant to 42 U.S.C. § 1983, plaintiffs ordinarily
retain the burden of proof throughout the trial.”).
16
The parties disagree about whether United States v. Kelley, 981 F.2d 464
(5th Cir. 1993), applies. This court in Kelley held that a consent to search
cures any Terry error that may have occurred with respect to detention. In
Kelley, however, the court held that the consent cured any error that occurred
prior to the consent, while here the alleged error (the one-hour detention)
occurred after the consent. Whether, in such a case, the prior consent cures a
later error, we do not decide because Bowden has failed to carry his burden of
proof.
9
have reasonable suspicion. Nor does he explain why the officers’
efforts to get a warrant and search the house were not diligent.
The district court’s judgment on the Terry claims was proper.
IV.
Bowden next argues that his Fourth Amendment rights were
violated because Officer Schutze falsified information - that he
and another officer smelled anhydrous ammonia coming from Bowden’s
house - in his application for the search warrant pursuant to which
his house was searched. The district court ruled that Bowden
“fail[ed] to point to any summary judgment evidence to support his
contention.” On appeal, Bowden states that although he “might have
made the point more emphatically, the fact that no anhydrous
ammonia was found in or around Bowden’s home is repeatedly stated.”
Bowden did introduce two pieces of evidence in the district court -
Schutze’s affidavit submitted to the magistrate for the search
warrant and the list of items seized from his house after the
search. His argument is essentially that, because anhydrous
ammonia is not included on the list, Schutze’s must have lied in
his affidavit.
Bowden’s evidence is insufficient to raise a genuine issue of
material fact as to whether Schutze lied in his affidavit. It is
important to remember that, although a party does not have to prove
a fact by a preponderance of the evidence to survive summary
judgment, he also cannot proffer an unbelievable factual scenario;
10
the evidence must be believable by a reasonable trier of fact.17
While “anhydrous ammonia” was not on the list of things seized, the
search of Bowden’s house turned up methamphetamine, a “glass jar
with clear liquid,” a “plastic gallon container containing liquid
& white wet residue,” and lighter fluid, among other
methamphetamine production materials. There is nothing in the
record to create a genuine issue of material fact regarding the
truth of the officer’s testimony that he smelled anhydrous
ammonia.18
V.
Bowden’s next claim is that the defendants violated his Fourth
Amendment rights by unnecessarily destroying his property in the
course of their search. Bowden argued in his complaint that his
dog, Lexus, was taken and destroyed following the October 24, 1999
search - an event outside of the statute of limitations. This is
the only destruction of property mentioned by Bowden in his
pleadings.
Bowden’s sole evidence of destruction of property was an
17
See, e.g., Cousin v. Small, 325 F.3d 627, 632 (5th Cir. 2003).
18
From looking at the district court’s language - that Bowden “fail[ed]
to point to any summary judgment evidence to support his contention” - it may be
that the district court did not consider the one piece of evidence offered by
Bowden. Nonetheless, that one piece of evidence is insufficient to create a
triable issue of fact. Bowden also argues that the defendants have waived the
argument that something else in the house may have smelled of anhydrous ammonia
because they raise it for the first time on appeal; not only is this irrelevant
because the district court was charged with independently weighing the evidence,
but it appears that the defendants sufficiently raised the issue below in denying
that the affidavit contained lies.
11
affidavit by Sheree Bowden-McNaughton, Bowden’s sister, presented
by Bowden in response to the defendants’ motion for summary
judgment. She attested to the following facts:
• “[Bowden] was arrested during the evening of
Mother’s Day, 2000. After the arrest, the police
returned to [Bowden’s] home, without a search
warrant and confiscated [Bowden’s] dog Lexus and
left Lexus’ four (4) nursing pups. While at the
house, the police destroyed [Bowden’s] home.”19
• “After the arrest I went to my brother’s house and
discovered the home had been destroyed by the
Electra Police Department. Specifically, the place
was ransacked to such a degree, that it took
several days to create a path through the house so
I could move around.”
• “Lisa Moenning, Electric Official and Animal
Control Officer admitted to me that she witnessed
Joseph Schutze beating Lexus while the animal was
being held in the dog pound. After the beating,
Schutze pulled out his gun and shot Lexus in the
head.”
In light of this affidavit, the district court considered two
distinct allegations of property destruction that allegedly
occurred during the May 15 search: the killing of the dog20 and the
“ransack[ing]” or “destr[uction]” of the house. Considering all
evidence in the light most favorable to Bowden, the district court
concluded that the defendants were entitled to summary judgment.
19
The validity of this statement is questionable. Bowden alleges that the
events and arrest occurred on May 15, 2000; McNaughton attests that the arrest
occurred on Mother’s Day, which, in 2000, was on May 10.
20
Bowden, in his brief on appeal, admits that his original complaint and
motion for summary judgment misstated the date concerning the killing of his dog,
Lexus, and that it occurred in connection with the May 15, 2000 arrest, which is
roughly consistent, see supra note 19, with Bowden-McNaughton’s allegations. In
any event, the district court considered the alleged destruction of the dog, and
so we do as well.
12
We review that ruling de novo.21
Regarding the dog, the district court concluded that Bowden-
McNaughton’s statement about Moenning’s statement was incompetent
evidence under Federal Rule of Civil Procedure 56(e). That rule
requires affidavits to be based on such facts as would be
admissible in evidence. Bowden-McNaughton’s statement appears to
be inadmissible hearsay, although Bowden argues on appeal that
Moenning’s statement was an admission by a party, admissible under
Federal Rule of Evidence 801(d)(2)(D). Defendants contend that
Moenning was not a City employee when she made the statement. We
find no record evidence regarding Moenning’s employment status at
the time she made the statement. Because Bowden has the burden of
establishing the admissibility of evidence supporting his claim,
the district court was correct in concluding that Bowden-
McNaughton’s statement about Moenning’s statement was inadmissible.
Moreover, because this is the only evidence that the dog was
killed, the district court was correct in rejecting Bowden’s claim.
Regarding Bowden-McNaughton’s claim that Bowden’s house was
“ransacked” and “destroyed,” the district court concluded that
“there were no specific allegations of property destruction at the
time of the search.” The defendants also point out that Bowden
admitted to receiving his items back from the police department,
21
Threadgill v. Prudential Sec. Group, Inc., 145 F.3d 286, 292 (5th Cir.
1998).
13
except for his dog.22 Bowden had the burden, in responding to the
defendants’ motion for summary judgment, to create a genuine issue
of material fact with respect to his destruction-of-property claim,
and he failed to do so.
VI.
Bowden’s fifth claim is that the district court erred in
concluding that Bowden failed to prove official knowledge of a
custom of unconstitutional behavior as required by Monnell v.
Department of Social Services.23 The district court acknowledged
Bowden’s allegations of an official policy (based on the eleven
instances in which he was stopped by Electra police officers) and
a constitutional violation (the Terry v. Ohio claim). The district
court determined, however, that Bowden “never avers the second
required showing for a claim of municipal liability. The issue of
actual or constructive knowledge of the Electra Police Department
custom of stopping and searching [Bowden] never surfaces.”
22
Bowden also appears to argue, albeit in a conclusory fashion and without
addressing the fact that almost all of his property was returned, that his rights
were violated because the officers exceeded the scope of the warrant when they
seized and retained certain items, such as his electronic equipment. Although
he argued below in general terms that the search was “unreasonable,” he never
made this specific argument; his argument was only that the officers trashed his
house and took his dog. Thus, this argument, having been raised for the first
time on appeal, is waived. See Vela v. City of Houston, 276 F.3d 659, 678 (5th
Cir. 2001).
23
436 U.S. 658 (1978); Pineda v. City of Houston, 291 F.3d 325, 328 (2002)
(stating the Monnell requirements of: 1) an official policy or custom; 2) actual
or constructive knowledge on the part of a policymaker; and 3) that the policy
or custom was the “moving force” of the violation).
14
Bowden, in his opening brief to this court, refers to ten
events where other individuals filed claims against the City of
Electra asserting a variety of allegations, including false arrest,
excessive force, and First, Fourth, and Fifth Amendment violations.
As the defendants correctly point out, none of this evidence was
presented to the district court. Thus, it cannot be considered by
this Court.24 Bowden also argues that the ten previous instances
of alleged harassment of Bowden point to constructive knowledge.
Although he used these facts below to argue the existence of a
policy, he did not use them to establish the existence of knowledge
on the part of a policymaker. Therefore, this argument was not
made below and cannot be considered here.25 And even if we
considered it, Bowden testified that he never complained to anyone
about these instances, making it hard to see how they could show
knowledge; his argument, made for the first time on appeal, that
the small size of the City police department made complaints
unnecessary, is both waived and unconvincing.
Bowden failed to show actual or constructive knowledge of a
policymaker. The district court’s judgment was correct.
VII.
Finally, Bowden challenges the district court’s denial of his
24
See, e.g., Garcia v. Am. Marine Corp., 432 F.2d 6, 8 (5th Cir. 1970)
(“It is fundamental that facts not presented at trial may not be asserted on
appeal. Any action on appeal can be properly based only on matters considered
at trial; this court may not therefore, reverse a trial court on the basis of
facts not in the record.”).
25
Vela, 276 F.3d at 678.
15
Fourteenth Amendment claim. Bowden appears to have alleged two
different Fourteenth Amendment violations: first, a violation of
his rights under the “incorporated” Fourth Amendment, which, we
have explained, was without merit; and second, a violation of his
right to substantive or procedural due process or equal
protection.26 The district court’s analysis of the latter claim
was, in full, that Bowden “cannot successfully advance a violation
of rights under the Fourth Amendment. Summary judgment is granted
as to Plaintiff’s Fourteenth Amendment Claims. Texas law applies
a similar standard for substantive due process claims.”
In his opening brief here, Bowden refers to a variety of
police action that that he alleges deprived him of “life, liberty,
or property” (although he mentions nothing about equal protection).
But nowhere in the district court did he make any argument
regarding these claims; thus, they are not properly presented on
appeal. Moreover, he presents no evidence for these claims
distinct from the alleged evidence for the Fourth Amendment claims,
which we have already held is inadequate.
VIII.
For the foregoing reasons, the judgment of the district court
is AFFIRMED.
26
In his complaint, he mentions “life,” “property,” and “his right to
substantive procedural [?] due process and equal protection.”
16