Case: 09-20715 Document: 00511296128 Page: 1 Date Filed: 11/17/2010
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
November 17, 2010
No. 09-20715 Lyle W. Cayce
Clerk
KENNETH CUADRA
Plaintiff - Appellant
v.
HOUSTON INDEPENDENT SCHOOL DISTRICT; CAROL WICHMANN;
MARMION DAMBRINO; BILLY ALDRICH; BETH BONNETTE; MELBA
MARTIN; ANNE PATTERSON
Defendants - Appellees
Appeal from the United States District Court
for the Southern District of Texas
Before JONES, Chief Judge, and REAVLEY and HAYNES, Circuit Judges.
HAYNES, Circuit Judge:
Kenneth Cuadra (“Cuadra”) appeals a grant of summary judgment for the
Houston Independent School District (“HISD”) and several HISD personnel
(collectively “Appellees”) on his 42 U.S.C. § 1983 claims. Cuadra filed suit
against the Appellees after he was indicted and subsequently arrested in
connection with a falsified student drop-out report sent to the State of Texas by
Sharpstown High School (“SHS”). Because we find that Cuadra failed to raise
a genuine issue of material fact as to any of his constitutional claims, we
AFFIRM the district court’s grant of summary judgment for the Appellees.
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No. 09-20715
I. Facts and Procedural History
Cuadra served as a network specialist at SHS until August 2004. As part
of his job responsibilities, Cuadra played a role in the school’s required annual
reporting of student drop-out data to the State of Texas. SHS uses a computer
program known as SASI to maintain official records of student data, including
student drop-out information. Once data is entered into the SASI program, it
can be uploaded to HISD’s Public Education Information Management System
(“PEIMS”). Data in the PEIMS system is then transferred to the Texas
Education Agency (“TEA”) via a server known as TEA Edit Plus. Cuadra and
Melba Martin (“Martin”), an attendance clerk at SHS, had access to SASI to edit
data for “leavers,” students who were enrolled or attended the school at some
point during the previous school year, but did not re-enroll in the fall. Martin
was responsible for inputting or editing “leaver codes,” numbers referencing the
reason why a student left school. Some of these codes indicated that the student
qualified as a “drop-out,” while other codes gave other reasons for leaving, such
as a family move to another city. Only Cuadra could upload the student drop-
out data to the PEIMS program, and this data was periodically sent to the TEA.
Cuadra claims that, on October 22, 2002, Assistant Vice Principal
Marmion Dambrino (“Dambrino”) and Principal Carol Wichmann (“Wichmann”)
told him to randomly delete ten to fifteen names from the student drop-out list
in anticipation of a meeting with General Superintendent Kaye Stripling
(“Stripling”).1 Cuadra admitted that he removed some names from the list on
the night of October 22nd. Computer log-in information indicated that Cuadra’s
ID was the only one used to log on to the system between the evening of October
22nd and the afternoon of October 23rd. During this time frame, the SHS
1
Dambrino and Wichman dispute Cuadra’s account.
2
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student data report changed from listing thirty drop-outs to listing zero drop-
outs.2
Sometime after making the changes to the student drop-out data, Cuadra
claimed that he accessed the SASI program again and changed the information
back. Cuadra alleged that Martin later changed the drop-out data again to show
zero drop-outs. Cuadra alleged that the Appellees knew the drop-out numbers
were incorrect and tried to cover up their part in the false reporting by pinning
responsibility for it on him.
In February of 2003, a local news station reported that SHS had falsified
its student drop-out data. Soon after, Billy Aldrich (“Aldrich”), a member of the
HISD Department of Professional Standards, commenced an investigation into
the matter at the request of Anne Patterson (“Patterson”), Superintendent of
HISD’s West District. During the course of his investigation, Aldrich spoke to
HISD and SHS employees and interviewed Cuadra twice. In both interviews
with Aldrich, Cuadra did not disclose that anyone asked him to change the drop-
out data.
In May 2003, Assistant Principal Robert Kimball (“Kimball”) wrote a letter
to Lester Blizzard (“Blizzard”), a Harris County Assistant District Attorney, and
alleged that SHS administrators, including several of the named Appellees, were
responsible for the false drop-out numbers. Blizzard contacted Aldrich after
receiving Kimball’s letter and requested a copy of Aldrich’s completed report,
which Aldrich sent in June 2003. Aldrich’s report concluded that Cuadra
knowingly changed student leaver codes without authorization. Ultimately,
Blizzard decided not to prosecute Cuadra.
2
The last student data report, printed at 4:39 p.m. on October 23rd, served as the
foundation for Cuadra’s subsequent criminal indictment for knowingly making a false
alteration to a government record.
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After Cuadra initiated an internal grievance, complaining that he was the
false target of Aldrich’s investigation, HISD decided to hire outside counsel, the
law firm of Rusty Hardin and Associates, to conduct an independent
investigation into the events. The findings of two attorneys from the firm
(“Hardin report”) confirmed the allegation that Cuadra knowingly changed
leaver codes listed on the PEIMS student drop-out report sent to the TEA
without authorization on October 22nd or October 23rd. After reviewing the
Hardin report, HISD’s Deputy Superintendent Abe Saavedra (“Saavedra”)
denied Cuadra’s grievance and recommended that the report be sent to the
Harris County District Attorney’s office for an independent determination of
potential criminal liability of any individual involved. Cuadra was again re-
assigned, this time to the HISD Bus Barn. Cuadra lost another grievance
related to this re-assignment and eventually resigned in August 2004.
On October 7, 2005, Tess Buess (“Buess”), District Attorney Blizzard’s
replacement, sought and obtained a grand jury indictment against Cuadra for
knowingly making a false alteration to a government record.3 Cuadra was
arrested and released on bond following the indictment, which was eventually
quashed. However, another grand jury subsequently re-indicted Cuadra in May
2006.
A few days after a conversation with Cuadra’s defense attorney in October
2006, Buess dismissed the second indictment against Cuadra and issued a press
release on the same day. Cuadra contends that Buess dismissed the indictment
because of a document she received from Cuadra’s defense attorney that Cuadra
3
That indictment against Cuadra stated that on or about October 22, 2002, Cuadra
unlawfully and knowingly made a false alteration of a governmental record, namely a public
school record (Exhibit A) and Cuadra’s actions were done with intent to defraud and harm
another. Exhibit A was the PEIMS Data Review Drop-out Roster printed on October 23, 2002
at 4:39 p.m.
4
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deems the “smoking gun.”4 Cuadra argues that at least one of the Appellees
possessed this document and did not disclose it to Buess prior to his indictments.
Cuadra filed the instant 42 U.S.C. § 1983 suit in federal district court.
The Appellees moved for summary judgment on all of Cuadra’s claims, and
Cuadra then moved for partial summary judgment on his First and Fourteenth
Amendment claims, the only claims that are the subject of this appeal.
Ultimately, the district court dismissed Cuadra’s action with prejudice and
denied Cuadra’s post-judgment motion. This timely appeal followed.
II. Standard of Review
The Fifth Circuit reviews a grant of summary judgment de novo, applying
the same standard as the district court. Shields v. Twiss, 389 F.3d 142, 149 (5th
Cir. 2004). Summary judgment is proper “if the pleadings, the discovery and
disclosure materials on file, and any affidavits show that there is no genuine
issue as to any material fact and that the movant is entitled to judgment as a
matter of law.” F ED. R. C IV. P. 56(c). This court “construes all facts and
inferences in the light most favorable to the nonmoving party when reviewing
grants of motions for summary judgment.” Murray v. Earle, 405 F.3d 278, 284
(5th Cir. 2005). Where the burden of production at trial ultimately rests on the
nonmovant, “the movant must merely demonstrate an absence of evidentiary
support in the record for the nonmovant’s case.” Shields, 389 F.3d at 149. Then,
“the nonmoving party must come forward with ‘specific facts showing that there
is a genuine issue for trial.’” Id. (citing F ED. R. C IV. P. 56(e)). “An issue is
‘genuine’ if the evidence is sufficient for a reasonable jury to return a verdict for
4
This document is a portrait-printed roster of the names of thirty students alongside
six columns of data with two sets of handwriting on it. Dambrino’s handwriting is on the
bottom of the document. Cuadra alleged that Martin’s handwriting was the other set. He
asserts that this document proves his innocence because the handwritten information matches
the codes entered for each student that eventually resulted in a zero drop-out report to the
Texas Education Agency. The document has no date on it.
5
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the nonmoving party.” Hamilton v. Seque Software, Inc., 232 F.3d 473, 477 (5th
Cir. 2000). “A fact issue is ‘material’ if its resolution in favor of one party might
affect the outcome of the lawsuit under governing law.” Id. The Fifth Circuit
may “affirm a grant of summary judgment on any grounds supported by the
record and presented to the [district] court.” Hernandez v. Velasquez, 522 F.3d
556, 560 (5th Cir. 2008).
III. Discussion
Cuadra challenges the summary judgment entered on his Fourth and
Fourteenth Amendment claims.5 We address each issue in turn.
A. Cuadra’s Fourth Amendment Claims
1. No Free-Standing Malicious Prosecution Claim
Cuadra alleges that the Appellees violated his Fourth Amendment rights
by intentionally withholding information and manipulating evidence to procure
his indictment. To the extent that Cuadra alleges that the Appellees violated his
constitutional rights by engaging in malicious prosecution, that argument is
foreclosed by our decision in Castellano v. Fragozo, 352 F.3d 939, 958 (5th Cir.
2003) (en banc). In Castellano, we noted that “[t]he initiation of criminal charges
without probable cause may set in force events that run afoul of explicit
constitutional protection--the Fourth Amendment if the accused is seized and
arrested, for example, or other constitutionally secured rights if a case is further
pursued.” Id. at 953. However, we held that a freestanding 42 U.S.C. § 1983
claim based solely on malicious prosecution was not viable. Id. at 942. Rather,
the claimant must allege “that officials violated specific constitutional rights in
5
Cuadra asserted a litany of other constitutional violations at various times throughout
these proceedings, including a Fourteenth Amendment equal protection claim, First
Amendment retaliatory prosecution claims, and conspiracy claims. Because Cuadra failed to
brief any of these claims in his initial brief to this court, he has waived them. See Yohey v.
Collins, 985 F.2d 222, 225 (5th Cir. 1993) (“This Court will not consider a claim raised for the
first time in a reply brief.”) (internal citations omitted).
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connection with a ‘malicious prosecution.’” Id. at 945. Thus, Cuadra’s attempt
to assert a free-standing § 1983 malicious prosecution claim fails as a matter of
law.6
2. Independent Fourth Amendment Violations
Cuadra has not raised a genuine issue of material fact as to any other
possible violation of his Fourth Amendment rights. Cuadra explicitly waived a
false arrest claim in the district court. Although Cuadra alleges he was the
subject of an “unreasonable seizure,” he has not shown that his arrest occurred
“in an extraordinary manner, unusually harmful to an individual’s privacy or
even physical interests.” Glenn v. City of Tyler, 242 F.3d 307, 313 (5th Cir.
2001).
Even if we considered either a false arrest or unreasonable seizure claim,
Cuadra has failed to raise a fact issue as to lack of probable cause, a necessary
component of each claim. “Probable cause exists when the totality of the facts
and circumstances within a police officer’s knowledge at the moment of arrest
are sufficient for a reasonable person to conclude that the suspect had committed
or was committing an offense.” United States v. McCowan, 469 F.3d 386, 390
(5th Cir. 2006). We have held that “if facts supporting an arrest are placed
before an independent intermediary such as a magistrate or grand jury, the
6
Even if we were to reach the common law elements of malicious prosecution to
determine whether the Appellees’ actions led to violations of Cuadra’s Fourth Amendment
rights, we find that Cuadra failed to create a fact issue on several of those elements. To
establish a Texas common law claim for malicious prosecution, the plaintiff must show: (1) a
criminal action was commenced against him; (2) the prosecution was caused (initiated or
procured) by the defendant or with his aid; (3) the action terminated in the plaintiff’s favor;
(4) the plaintiff was innocent; (5) the defendant acted without probable cause; (6) the
defendant acted with malice; and (7) the criminal proceeding damaged the plaintiff. Taylor
v. Gregg, 36 F.3d 453, 455 (5th Cir. 1994), overruled in part by Castellano, 352 F.3d 939;
Richey v. Brookshire Grocery Co., 952 S.W.2d 515, 518 (Tex. 1997). Cuadra has not shown that
any of the Appellees initiated or procured his prosecution, as the evidence shows that the
Appellees did not influence Buess and merely cooperated with her during her independent
investigation. Cuadra also created no fact issue as to whether any of the Appellees actively
sought his indictment.
7
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intermediary’s decision breaks the chain of causation for false arrest, insulating
the initiating party.” Taylor, 36 F.3d at 456. However, the chain of causation
remains intact if “it can be shown that the deliberations of that intermediary
were in some way tainted by the actions of the defendant.” Hand v. Gary, 838
F.2d 1420, 1428 (5th Cir. 1988). “[T]he chain of causation is broken only where
all the facts are presented to the grand jury, or other independent intermediary
where the malicious motive of the law enforcement officials does not lead them
to withhold any relevant information from the independent intermediary.” Id.
Here, both Buess and two separate grand juries qualified as independent
intermediaries. Cuadra’s mere allegations of “taint,” without more, are
insufficient to overcome summary judgment. Taylor, 36 F.3d at 457
(emphasizing that the “taint” must be shown and finding no summary judgment
evidence to support assertions that an intermediary relied on an officer’s false
report). Cuadra admitted to changing the student drop-out data on October
22nd, which alone should suffice to establish probable cause for his indictments.
Despite the alleged significance of the “smoking gun,” Buess testified in her
deposition that she did not consider the document exculpatory, and it was in her
possession before she sought Cuadra’s re-indictment. Cuadra has also not raised
a fact issue as to whether any of the Appellees knowingly withheld the “smoking
gun” document or any other allegedly exculpatory information, thereby tainting
Buess’s independent decision to seek Cuadra’s indictments or either grand jury’s
decision to return the indictments.
As Cuadra has failed to raise a fact issue as to any potential Fourth
Amendment violation, we AFFIRM the district court’s grant of summary
judgment in favor of the Appellees on this issue.
B. Cuadra’s Fourteenth Amendment Substantive Due Process Claim
Cuadra preserved for appeal only one Fourteenth Amendment substantive
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due process claim based on his prosecution.7 We find such a claim foreclosed by
the Supreme Court’s decision in Albright v. Oliver, 510 U.S. 266 (1994). In
Albright, the Court held that there was no Fourteenth Amendment “liberty
interest” or substantive due process right to be free from criminal prosecution
unsupported by probable cause. Id. at 270-71; Castellano, 352 F.3d at 946S47.
Rather, “[w]here a particular Amendment ‘provides an explicit textual source of
constitutional protection’ against a particular sort of government behavior, ‘that
Amendment, not the more generalized notion of ‘substantive due process’ must
be the guide for analyzing these claims.’” Albright, 510 U.S. at 273 (internal
citations omitted). Thus, the Albright Court held that the plaintiff’s claims
based on prosecution without probable cause were best analyzed under the
Fourth Amendment, as the “Framers [of the Constitution] considered the matter
of pretrial deprivations of liberty and drafted the Fourth Amendment to address
it.” Id. at 274.
Cuadra’s Fourteenth Amendment claims are based on alleged pretrial
deprivations of his constitutional rights and, under the holding in Albright, such
claims should be brought under the Fourth Amendment. Cuadra attempts to
support his Fourteenth Amendment due process claims by citing the Supreme
Court’s holding in Napue v. Illinois, where the Court stated that “a State may
not knowingly use false evidence, including false testimony, to obtain a tainted
conviction . . . .” 360 U.S. 264, 269 (1959). However, Cuadra was not convicted
7
Cuadra’s other Fourteenth Amendment claims were time-barred. The applicable
limitations period for 42 U.S.C. § 1983 claims is governed by reference to the most analogous
cause of action under state law. Owens v. Okure, 488 U.S. 235, 236 (1989). Under the general
Texas tort statute, Cuadra had two years after the day the cause of action accrued to bring his
claims. TEX . CIV . PRAC . & REM . CODE ANN . § 16.003 (Vernon 2005). Federal law determines
the date of accrual for § 1983 claims. Jackson v. Johnson, 950 F.2d 263, 265 (5th Cir. 1992).
A general cause of action accrues when the plaintiff becomes aware that he has suffered an
injury or has sufficient information to know that he has been injured. Id. As the events
Cuadra complained of in most of his Fourteenth Amendment claims occurred in 2004, and
Cuadra did not file suit until 2007, those claims were time-barred.
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of a crime based on false evidence. Rather, he complains of alleged deprivations
of his pretrial rights resulting from his indictments. Such a claim is not a viable
Fourteenth Amendment claim. Thus, we AFFIRM summary judgment for the
Appellees on Cuadra’s Fourteenth Amendment substantive due process claim.
IV. Conclusion
For the forgoing reasons, we AFFIRM the grant of summary judgment for
the Appellees.
10