United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
July 27, 2004
FOR THE FIFTH CIRCUIT
Charles R. Fulbruge III
Clerk
No. 03-40394
NADINE JOHNSON,
Plaintiff-Appellant,
versus
DEEP EAST TEXAS REGIONAL NARCOTICS
TRAFFICKING TASK FORCE; ET AL,
Defendants,
NACOGDOCHES COUNTY; KIM COURTNEY,
Task Force Member; RAMIRO MENDIOLA,
Nacogdoches County Sheriff Deputy,
Defendants-Appellees.
Appeal from the United States District Court
for the Eastern District of Texas
Before GARWOOD, JOLLY, and CLEMENT, Circuit Judges.
GARWOOD, Circuit Judge:
In this damage suit under 42 U.S.C. § 1983 arising out of the
March 9, 2001 search of her home, plaintiff-appellant Nadine
Johnson appeals the grant of summary judgment in favor of
defendants-appellees Nacogdoches County and its deputy sheriffs Kim
Courtney and Ramiro Mendiola. We affirm.
Facts and Proceedings Below
On March 9, 2001, the Houston Field Division of the Drug
Enforcement Agency (DEA) coordinated a “round up” of drug-related,
outstanding state and federal arrest warrants in Nacogdoches
County, Texas (and possibly other counties). The agencies
participating in this round up included the DEA, the ATF, the
United States Marshal’s Service, the Texas Department of Public
Safety, the City of Nacogdoches Police Department, the Nacogdoches
County Sheriff’s Department, the Sabine County Sheriff’s Office,
and the Deep East Texas Narcotics Trafficking Task Force (the Task
Force).1
In preparation for the round up, defendant-appellee Ramiro
Mendiola (Mendiola), a deputy sheriff with the Nacogdoches County
Sheriff’s Office on assignment to the Task Force, put together
“bust out” packages for the persons to be arrested. Each package
contained the warrant(or warrants) for that person, a blank consent
to search form, the address of the person to be arrested which was
taken from the offense report, and a photograph of that person, if
1
The exact nature of the Task Force is not entirely clear from the record. It apparently
arises from an interlocal cooperation contract or contracts, under Chapter 791 of the Texas
Government Code, between various cities and counties in East Texas, including, among others,
Nacogdoches County and the City of Nacogdoches, and various state agencies. Personnel were
assigned to it from participating local governments and agencies, it received funding from
participating local governments and from the state, and it had some sort of board of directors
which included representatives from participating local governments. At an early stage in the
litigation, the district court dismissed the Task Force, ruling that it was not a legal entity subject
to suit. Neither that ruling nor the basis for it has been addressed by any party to this appeal.
2
available. After having prepared the packages, Mendiola turned
them over to the DEA to be distributed at the round up meeting on
the morning of March 9th.
The approximately eighty-seven officers and agents that were
to participate in the round up met at 6:30 a.m. on the morning of
March 9th, at a DEA command center site, and were then separated
into eight teams and given assignments. Together, these teams were
to execute a total of eighty-six state and federal warrants. Each
team leader was given a bust out package on each suspect assigned
to that team, and the leaders were told to refer to these packages
for the information to conduct their assignments. The team leaders
waited for instructions from the DEA command center to commence
execution of the warrants. While defendant-appellee Kim Courtney
(Courtney), a Nacogdoches County deputy sheriff on assignment to
the Task Force, was assigned to one of these teams, Mendiola played
no role in the execution of the warrants, nor was he a part of any
team.
Team three, led by DEA Agent Fred Marshall (Marshall), was
originally comprised of eight members, including Courtney. This
team was assigned to execute twelve arrest warrants on a total of
ten people, one of whom was Davin Wayne Howard (Howard). Howard
had two outstanding state felony arrest warrants for the delivery
of crack cocaine, each warrant being dated December 11, 2000.
These two warrants were apparently based on grand jury felony
3
indictments for crack cocaine sales on September 19, 2000 and
October 26, 2000. The bust out package on Howard indicated that
his address was 419 Otis Street, Nacogdoches. In preparing this
and all other bust out packages, Mendiola referred to the suspect’s
offense report in the Nacogdoches County jail records. The offense
reports on the October 26 and September 19, 2000 sales by Howard
each showed his address as 419 Otis Street (the reports described
the offenses as street buys on other streets). Howard had been
booked in the County jail on July 10, 2000, and then listed his
address as 419 Otis Street. This was apparently the source of the
information concerning his address on the October 26 and September
19, 2000 offense reports. 419 Otis Street was the address that
Mendiola included in preparing Howard’s package.2 However, unknown
2
The arrest warrants did not themselves state Howard’s
address. The underlying offenses were sales of crack cocaine by
Howard to undercover officers, one on September 19, 2000 and the
other on October 26, 2000, each in the City of Nacogdoches. The
offense reports on those two sales each reflect Howard’s address
as 419 Otis Street. No arrest was made at the time of either
sale. The report on the September 19 sale reflects that it took
place “on the roadway on Orton street”; the report on the October
26 sale reflects that it took place on the corner of Orton and
Brown streets. The report on the October 26 sale indicates that
Howard’s address was obtained from the book-in photograph
obtained from the jail records, presumably that from the July 10,
2000 arrest. Courtney and another undercover agent, Vanya, made
the October 26 “buy”; Vanya prepared the report, including its
reference to Howard’s address. The September 19 “buy” was made
by undercover agents Shaver and Shugart, with the latter
preparing the report. When asked at her deposition where the
information as to Howard’s address in the report of the September
19 “buy” came from, Courtney said “I would imagine it’s from the
book-in photograph” – presumably referring to that from the July
10, 2000 arrest – but that it was “possible” that Shugart or
4
to Mendiola, or any other of the individual defendants or any law
enforcement officers, Howard had in fact not been living at the
Otis Street address since August of 2000.3 Howard’s mother, Mrs.
Wade, had been leasing the house for some time until her eviction
in August 2000. One of the Team three members, City of Nacogdoches
Police Officer Cain, had seen Howard at the 419 Otis Street
residence in March 2000. However, completely unknown to the Team
three members, on March 9, 2001, plaintiff, sixty-seven year old
Nadine Johnson was living there alone, as she had been since August
2000.
The team members themselves played no role in acquiring the
information in the packages and had no information suggesting that
it was not, or was unlikely to be, correct. At the briefing
earlier that morning, there was no discussion of Howard’s address.
The packages were given to the team leader, Marshall, and he told
the team members the addresses they were going to. Courtney had
Shaver “had other independent information.” Neither Vanya,
Shugart nor Shaver was a member of Team three, and there is no
evidence any of them played any part in any of the events of
March 9, 2001. Apart from understanding that Team three had
proceeded to the address listed for Howard on the bust out
package for him furnished to Marshall, there is no evidence that
Courtney had any knowledge or information as to Howard’s address
or that she purported to impart any such information to others.
3
However, Howard continued to list this as his current
address. When he was arrested on March 14, 2001, and booked into
jail, he listed 419 Otis Street as his address. There is no
evidence that on March 9, 2001, the records of the jail or of the
Sheriff’s department showed any other address (at any time) for
Howard or contained any suggestion that 419 Otis Street was not
then his address.
5
nothing to do with confirming whether Howard was then, or ever had
been, at the Otis Street address, and as to decisions related to
that she was simply following the instructions of Marshall. The
team members were under the direction of DEA agent Marshall as the
team leader and they were to follow his commands and the DEA
procedures for executing the warrants. Marshall, based on the bust
out package, believed that 419 Otis Street was where Howard
resided, and so did the other team members.
Team three arrived at the Otis Street location about 9 a.m. in
two separate cars. Upon arrival, five of the team members,
including Courtney and team leader Marshall, went to the front
door, while others went around the back and side of the house.4
Marshall knocked on the door and announced “police, arrest
warrant,” “police, come to the door,” and “police, open up”
repeatedly. Upon hearing some movement in the house but not
receiving a response after approximately thirty seconds, Marshall
ordered team member Cain, a City of Nacogdoches police officer, to
breach the door. Cain did so. Courtney did not knock on the door,
or participate in its breaching; nor did she say anything before
the door was breached and the officers entered. As Marshall
testified in his deposition, the decision to breach the door and
enter the house was his alone, and all that the members of the team
4
Team three members present at 419 Otis Street on March 9
were Marshall, three City of Nacogdoches police officers, Cain,
Lightfoot and Crelia, two Texas Alcoholic Beverage Commission
officers, and Courtney. The eighth team member was absent.
6
did at the Otis Street premises was pursuant to his directions.
The team members then entered the house. While there is some
dispute as to what exactly was said and precisely how long the
officers waited before forcing entry, Johnson admitted that she saw
the officers pull up in front of her house and get out of their
cars, heard them coming up on the porch, and heard them “hollering
police, open up.” She testified that she was heading toward the
door when it was breached.
Courtney was the last or next to last officer to enter the
house. She was the only female on the team and was wearing a mask
over her face to protect her identity, as she was an undercover
agent with the Task Force, and did not want to be recognized for
fear of destroying her undercover status. Once inside, the team
members saw Johnson in the front room of the house. She was told
by one or more unidentified team members to get down. When
Courtney first saw Johnson she was starting to kneel to get down on
the couch. Johnson asked Courtney if she could kneel by the sofa
and Courtney told her she could. Johnson stated in her deposition
that she asked Courtney “who they were looking for” and Courtney
told her “to turn my head back around and lay down before she shot
me” and that “the lady that told me to lay my head down, she had
her gun in her hand. I know she had hers because I kindly turned
to see – to ask her that question, but now as far as you know, it
7
wasn’t no clicking on it, but they had them in their hands.”5
There is no evidence that Courtney ever pointed her gun at Johnson.
Johnson did testify that when the officers entered they had their
guns drawn, pointed “towards me,” but that no officer pointed their
gun specifically or directly at her.6
5
Courtney on her deposition denies ever “telling her
[Johnson] to turn around or you would shoot her” or words to that
effect. Other officers testified they heard no such threat by
Courtney.
6
Johnson’s relevant deposition testimony states (questions
by defense counsel except as otherwise indicated):
“Q. And how many officers were – actually pointed a gun
at you that day?
A. When – when that door fell open they all had guns
drawn, you know, just, you know, they told me to get on
the floor.
Q. Do you know which officers actually pointed a gun at
you?
A. Well, they all had their guns in their hands.
Q. All right. As far as pointing ‘em at you?
A. They never did take the guns off of me until after
they got through searching.
Q. All right. So you’re – you’re basically saying all
the officers had their guns on you all the time?
A. I believe they did as far as to be truthfully I
believe they did. All except the one – now, the one –
I don’t know, that was searching I don’t know if he had
his drawn at the – at the time when he was searching or
not . . . .
Q. All right. And so you’re saying that once you’re
even down on the floor they all still had their guns on
you?
8
A. I believe – yes, uh-huh.
Q. Okay. Except for one that might have gone through
the house?
A. The one that might have gone through the house. See
I couldn’t see, I couldn’t turn around because she told
me keep my head down and so that’s, you know –
Q. So were you able to see whether they had their guns
on you or not?
A. No, I had my head down like that [indicating].
Q. So you couldn’t see whether they had their guns –
A. No.
Q. – on you or not?
A. – no, but when I was getting on the floor, I know
they had ‘em drawn.”
“Q. Okay. When the officers came into the house, you
said that from what you saw the officers had their guns
drawn?
A. Yes.
Q. Now, Ms. Johnson, I want to make a distinction
between them having their guns drawn and pointing their
guns at you, okay?
A. Uh-huh. Yes.
Q. Now, let me ask you did any of the officers point
their gun at you?
A. They – when they – when they broke the door down,
they had the guns in their hands and they told me to
get on the floor –
Q. Yes, ma’am.
A. – and they had their guns drawn in their hands.
Uh-huh.”
9
. . .
“Q. – and I’m trying to make a distinction between
them having their guns drawn and did – did any officer
ever point their gun at you?
A. Just – no, not, you know, not – not to more than
what they already had in their hand when they came in,
the guns in their hands.
Q. Okay.
Mr. Stuckey [plaintiff’s counsel]: What direction were
the guns pointed?
A. Towards me.
Q. You said when they came in the house they had their guns
drawn?
A. Uh-huh. Uh-huh. And they told me to get on the
floor, get on the floor.
Q. Yes, ma’am. And I’m just trying to figure out from
you what you testimony is gonna be. Did any of the
officers point their guns at you?
A. No more than where they was already pointed when
they came in. Is that what you’re talking about?
Q. Yes, ma’am. Did they have their guns in the air
like this like you see on TV?
A. Yes. Uh-huh. When they came in.
Q. And that was how their guns were presented when
they came in the house?
A. Yes. Uh-huh.
Q. And nobody pointed their gun at you?
A. No, not just – no. No.” (emphasis added)
This was Johnson’s final testimony on that matter.
10
After conducting a quick sweep of the house and discovering
that Howard was not there, most of the team members departed.7
Courtney and Marshall remained briefly to check on Johnson’s
condition. Courtney asked Johnson if she was ok and helped her up.
Courtney then asked if she was going to be alright and if she
needed any help. Johnson said that she was fine and did not need
assistance. Courtney also apologized to her. Before leaving,
Marshall gave his card to Johnson and told her that they would pay
to repair her door, which had been damaged during the breach (and
this was done). He also asked Johnson if she needed any medical
attention, and she declined. Johnson was not hostilely or
forcefully touched by any of the officers. However, after her
daughter arrived later that day, Johnson went to the emergency room
with chest pains and high blood pressure. She remained in the
hospital for three days.
In late December 2001, Johnson filed this suit. She
ultimately sought damages under 42 U.S.C. § 1983, Bivens v. Six
Unknown Named Agents, 91 S.Ct. 1999 (1971), and the Federal Tort
7
At some point, Johnson understood from the officers that
they were looking for Howard and she told them she did not know
Howard. Although Johnson knew Howard’s mother, to whom she was
distantly related, and Howard’s half brother, she had never met
Howard himself.
11
Claims Act, against the Task Force, City of Nacogdoches police
officers Cain and Lightfoot, the City of Nacogdoches, Nacogdoches
County, Nacogdoches deputy sheriffs Courtney and Mendiola, DEA
agent Marshall and the United States, complaining that by the
events of March 9, 2001, the defendants violated her rights under
the Fourth Amendment to be free from unreasonable search and
seizure. Johnson eventually settled with Cain, Lightfoot and the
City, as well as with Marshall and the United States, and her
claims against those parties were dismissed.8 As Johnson does not
complain on appeal of the dismissal of her claims against the Task
Force, this appeal concerns only the dismissal of her claims
against Courtney, Mendiola and Nacogdoches County.
Courtney and Mendiola filed separate motions for summary
judgment, each contending they were entitled to qualified immunity
because they did not violate Johnson’s Fourth Amendment rights or,
alternatively, if they did, that under the circumstances not all
reasonable officers situated as they were would realize that their
conduct was constitutionally proscribed. Nacogdoches County filed
a motion for summary judgment contending that it was not liable
because the summary judgment evidence could not support a finding
that either Courtney or Mendiola, the only County personnel alleged
to have been involved, violated Johnson’s Fourth Amendment rights;
8
Johnson’s settlement with Marshall and the United States
was for $55,000; the terms of the settlement with Cain, Lightfoot
and the City are not reflected in the record.
12
and, even if the evidence sufficed to show that Johnson’s Fourth
Amendment rights had been violated, it did not suffice to show that
such was a sufficiently direct or proximate result of any policy or
custom of Nacogdoches County; and further that, in any event, no
such formal policy nor any equivalent custom or practice on the
part of the County was either properly alleged or shown by
sufficient evidence to be unconstitutional or adopted or continued
by county policy makers in deliberate indifference to infringement
of constitutional rights.
The district court granted these motions for summary judgment
and dismissed Johnson’s suit against Courtney, Mendiola and the
County, who were then the only remaining defendants. The court
held that Courtney and Mendiola were entitled to qualified immunity
and that no actionable county policy had been properly pled or
evidenced. Johnson has timely appealed.
Discussion
1. Standard of Review
This court reviews the grant of summary judgement de novo,
applying the same standards as the district court. Correa v.
Fischer, 982 F.2d 931, 932 (5th Cir. 1993). Summary judgment is
appropriate 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). Facts are material if they might affect the
outcome of the lawsuit under the governing law. Anderson v.
13
Liberty Lobby, Inc., 106 S.Ct. 2505, 2510 (1986). To the extent
they exist, genuine factual disputes are to be resolved in favor of
the nonmovant. Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th
Cir. 1994). In response to a properly supported motion for summary
judgment, the nonmovant must identify specific evidence in the
record and articulate the manner in which that evidence supports
that party’s claim, see Forsyth v. Barr, 19 F.3d 1527, 1537 (5th
Cir. 1994), and such evidence must be sufficient to sustain a
finding in favor of the nonmovant on all issues as to which the
nonmovant would bear the burden of proof at trial. Anderson, 106
S.Ct. at 2511; Celotex Corp. v. Catrett, 106 S.Ct. 2548, 2552-53
(1986); Burge v. St. Tammany Parish, 336 F.3d 363, 374 (5th Cir.
2003).
2. Determining qualified immunity
When a governmental official with discretionary authority is
sued for damages under section 1983 and properly raises the defense
of qualified immunity, the plaintiff bears the burden of rebutting
that defense. Salas v. Carpenter, 980 F.2d 299, 306 (5th Cir.
1992). In ruling on a motion for summary judgment based on
qualified immunity, the court first determines whether there is
evidence to sustain a finding that the defendant’s complained of
conduct violated plaintiff’s constitutional rights. If not, no
further inquiry is needed and the defendant is entitled to
qualified immunity. If so, the inquiry proceeds to determine
14
whether there is evidence to sustain a finding that under the
existing circumstances it would have been “clear to a reasonable
officer that his conduct was unlawful in the situation he
confronted.” Saucier v. Katz, 121 S.Ct. 2151, 2156 (2001). If
not, the defendant is entitled to qualified immunity. See Anderson
v. Creighton, 107 S.Ct. 3034, 3039 (“in the light of pre-existing
law the unlawfulness must be apparent”), 3040 (“The relevant
question . . . is . . . whether a reasonable officer could have
believed . . . [his] warrantless search to be lawful, in light of
clearly established law and the information the searching officer
possessed”; emphasis added) (1987); Malley v. Briggs, 106 S.Ct.
1092, 1096 (1986) (“qualified immunity . . . provides ample
protection to all but the plainly incompetent or those who
knowingly violate the law”; there is no immunity “if no reasonably
competent officer would have” thought his conduct was lawful, “but
if officers of reasonable competence could disagree on this issue,
immunity should be recognized”; emphasis added).9
3. Mendiola
9
See also Wilson v. Lagne, 119 S.Ct. 1692, 1700 (1999) (“.
. . the appropriate question is . . . whether a reasonable
officer could have believed that . . . [his complained of
conduct] was lawful, in light of clearly established law and the
information the officers possessed”) (emphasis added); McClendon
v. City of Columbia, 305 F.3d 314, 332 (5th Cir. 2002; en banc)
(“qualified immunity should be granted if a reasonable official
would be left uncertain of the law’s application to the facts
confronting him”) (internal quotation marks and citations
omitted).
15
Johnson argues that Mendiola violated her Fourth Amendment
rights because he provided the DEA with the package for Howard
which showed his address as 419 Otis Street without a reasonable
belief that Howard then in fact lived at or would otherwise be
present at that address. She asserts that in Payton v. New York,
100 S.Ct. 1371 (1980), the Supreme Court made it clear that an
officer executing an arrest warrant at a residence must have a
reason to believe that the party named in the warrant resides in
the place to be entered and that such party is then present there.
See also United States v. Route, 104 F.3d 59, 62 (5th Cir. 1997)
(officer’s authority to enter residence of person named in warrant
to execute it is governed by a “reason to believe” standard);
United States v. Bervaldi, 226 F.3d 1256, 1263 (11 Cir. 2000).10
Johnson notes that the only information Mendiola had linking
Howard to the Otis Street address was Howard’s own admission that
it was his current address when he was booked into jail in July of
2000,11 or, at the most, the offense reports on the September and
10
In Bervaldi the court held that, as a matter of law,
police entering a house pursuant to an arrest warrant had a
reasonable belief that the subject of the warrant resided there
based on information that was more than six months old. Id., 226
F.3d at 1264-66. The court explained that “[t]here is no
particular rule or time limit for when information becomes stale”
and “[r]esiding in a house . . . generally is not transitory or
ephemeral, but instead endures for some length of time.” Id. at
1265.
11
There is no evidence to suggest that this was not Howard’s
actual address at the time he gave the information.
16
October 2000 offenses. Moreover, Johnson contends that although
Mendiola might have verified Howard’s address using a number of
methods, such as surveillance of 419 Otis Street (or of Howard) or
checking with utility companies or neighbors, he did not do so and
instead simply examined the jail records.
Johnson presented no evidence that on the morning of March 9,
2001, Mendiola had (or that the jail records contained) any
information suggesting that Howard’s address was not then 419 Otis
Street or that he would likely not then be there. Mendiola was not
charged with making an independent investigation. He was merely
instructed to obtain the subjects’ addresses for inclusion in the
bust out packages, and it was up to his best judgement as to how to
complete the task assigned to him.12 Mendiola did not meet with
Team three, or any other team, and did not accompany any team in
the service of any warrants. Apart from putting together the bust
out packages, and placing thereon the address of the party named in
the warrant (which he had merely procured from the jail records),
12
Further, in response to plaintiff’s opposition to
Mendiola’s motion for summary judgment, Mendiola contended that
he prepared all, or at least 30, of the bust out packages, and
had only a very brief time, one day or less, to do so, and hence
could not reasonably or practically be expected to have
surveillance conducted or utility records checked or the like.
There is no evidence and Johnson has never contended that there
was time to perform those tasks between the request for the bust
out packages and their delivery the morning of March 9. Nor is
there any evidence of who, other than the DEA, was responsible
for when the packages were requested or when the round up was to
begin.
17
and delivering the packages to the DEA on the morning of March 9,
Mendiola had no discussion with and imparted no information to any
of those conducting the round up concerning any of those named in
the warrants or the addresses or likely whereabouts of any of them.
Moreover, the statement on the bust out packages of the
address of the party named in the arrest warrant may not reasonably
be understood as being absolutely current. There would frequently
be some lag time before utility records or the like would be
changed. Indeed, the party might well be residing at an address
for which the utility records were in another’s name. That was
likely the case with Howard, who had apparently lived with his
mother, whose last name was Wade, while she rented the 419 Otis
Street premises. There is no evidence whatever that examination of
utility or similar records would have suggested that Howard resided
at another address or no longer resided at 419 Otis Street.
Further, the bust out packages could not reasonably be
understood to represent, even impliedly, that the party named in
the arrest warrant would actually be present at the stated address
on the morning of March 9. Accordingly, Mendiola, in issuing the
bust out packages could reasonably assume that entry into the
stated address on the morning of March 9 would be either by consent
or on the basis of further information that the party named in the
arrest warrant was then actually present there.
Indeed, that is in essence what Mendiola did assume. When
18
asked by Johnson’s counsel on his deposition whether he now
realized, with the benefit of hindsight, how the events of the
morning of March 9 at 419 Otis Street, showed the importance of
giving persons who are to serve arrest warrants “the most current
information possible,” Mendiola responded that in his ten years of
service that was the only such event,13 and that the way the DEA did
it was not the way “we do our bust outs.” On Task Force bust outs
the normal procedure was “to give the warrants to the participating
agencies and they arrest the individuals as they see them. We
don’t go kick in the door;” if the officer knows the person for
whom the warrant is issued and knows that they are there, the
officer may go to the person’s house. Being familiar with
longstanding Nacogdoches policy and practice, Mendiola knew
Nacogdoches County would not have executed the warrant for Howard’s
arrest the way it was done March 9, and “we don’t kick in a door
for that.” There was no contrary evidence.14
While Mendiola could expect that the officers would go to the
419 Otis Street address, it was not unreasonable for him not to
13
Nor is there any evidence that any of the other warrants
served in the March 9 round up involved entry into a residence
where the party to be arrested was not then present or involved a
package where the address listed was other than the then address
of the arrestee.
14
Similarly, Courtney testified on her deposition that her
standard procedure before attempting to enter the 419 Otis Street
premises would have been to check further (such as with
neighbors) to determine whether Howard was there. There was no
contrary evidence.
19
expect that without further information that Howard was then
present – such as knocking and asking if he was present or the like
– that the officer would enter without consent. There is no
evidence to the contrary. Indeed, the bust out packages contained
a consent to search form, and the DEA operation plan for the round
up specifically advised that “Team leaders should attempt to attain
a signed Consent to Search form from every residence involved. If
no Consent to Search can be obtained, please contact the command
center or AUSA Malcolm [last name redacted] for further
instruction.”
There is no summary judgment evidence sufficient to support a
finding that any action or inaction on the part of Mendiola was
proscribed by the Fourth Amendment or constituted or amounted to an
invasion of Johnson’s Fourth Amendment rights. The district court
accordingly did not err in granting Mendiola’s motion for summary
judgment that he was entitled to qualified immunity.
4. Courtney
Johnson sued Courtney in her individual capacity, claiming
that she and the other team members unlawfully entered her house
and conducted the entry and search in a constitutionally
unreasonable manner.
(a) Johnson’s primary focus is on the nature of the officer’s
entry into her house and particularly the asserted violation of the
knock and announce component of the Fourth Amendment. Given United
20
States v. Banks, 124 S.Ct. 571 (2003), it is clearly arguable that
there was no such violation. We need not, and do not, ultimately
determine that matter, however. It is undisputed that Courtney had
no part in the decision to make the entry in question. She did not
knock or demand entry, she did not participate in forcing the door,
and she did not counsel or direct such action. DEA agent Marshall,
the team leader, made all those decisions entirely on his own;
Marshall alone knocked and demanded entry; he alone directed City
police officer Cain to breach the door, and Cain did so. It is
undisputed that the members of Team three were under the direction
of team leader DEA agent Marshall and “were to follow his
instructions and the DEA procedures for executing the warrants.”
There was no constitutional violation committed by Courtney in this
connection. Accordingly, the district court did not err in
granting Courtney’s motion for summary judgment as to this claim.
(b) With respect to Courtney’s subsequent entry into the
house, this, as noted, was entirely at the direction of Marshall,
the team leader. His uncontradicted testimony is that, so far as
he was aware, none of the officers did anything at the scene that
he did not tell them to do. Courtney was the last or next to last
to enter. She was aware that the bust out package information
furnished Marshall showed Howard’s residence as 419 Otis Street.
She had no information indicating that likely was not correct or
that Howard likely was not there. The district court, correctly
21
noting our holding in Doe v. Dallas Independent School District,
153 F.3d 211, 219 (5th Cir. 1998), that “[a]ctions and decisions by
officials that are merely inept, erroneous, ineffective, or
negligent do not amount to deliberate indifference and thus do not
divest the official of qualified immunity,”15 held that Courtney (as
well as Mendiola) was entitled to qualified immunity. Given that
“[t]here is no particular rule or time limit for when information
becomes stale” for these purposes and that “residency in a house .
. . generally is not transitory or ephemeral but instead endures
for some length of time,” Bervaldi, 226 F.3d at 1265,16 we hold that
the district court did not err in determining that, under all the
circumstances, Courtney was entitled to qualified immunity with
respect to her entry into the house under Marshall’s direction
after Marshall had knocked, announced and demanded entry, after
Cain had breached the door at Marshall’s direction, and after
Marshall and others had entered, because not all reasonable
officers, with the information Courtney then had, would have
15
And our similar holding in Wren v. Towe, 130 F.3d 1154,
1159 (5th Cir. 1997), that “[i]f reasonable public officials
could differ on the legality of a defendant’s actions, the
defendant is entitled to immunity from suit” and “[l]aw
enforcement officers are only human, and inevitably, accidents
and mistakes of judgment will happen, and these mistakes alone do
not open officers to personal liability.”
16
We are aware of no cases in this Circuit contrary to these
observations in Bervaldi. See also U.S. v. Hooshmand, 931 F.3d
725, 735-37 (11th Cir. 1991) (11 month old report by informant
supports warrant).
22
concluded that her entry was illegal. Cf. Saucier, 121 S.Ct. at
2159 (“what the officer reasonably understood his powers and
responsibilities to be, when he acted”).
(c) Johnson also complains of excessive force being used by
the officers after their entry into the house.17 The reasonableness
of a particular use of force “must be judged from the perspective
of a reasonable officer on the scene, rather than with the 20/20
vision of hindsight . . . . The calculus of reasonableness must
embody allowance for the fact that police officers are often forced
to make split-second judgments . . . about the amount of force that
is necessary in a particular situation.” Graham v. Connor, 109
S.Ct. 1865, 1872 (1989). After the officers entered, one or more
unidentified officers told Johnson to get down. When Courtney
first saw her, Johnson was starting to kneel to get down on the
sofa. Johnson asked Courtney if she could kneel by the sofa, and
Courtney said she could. Shortly thereafter Johnson, while
kneeling on the couch, started to turn her head and Courtney
allegedly told her “to turn my head back around and lay down before
she shot me.”18 The officers had their guns drawn but none ever
17
To establish a claim for excessive force in violation of
the Fourth Amendment, a plaintiff must prove “(1) an injury (2)
which resulted directly and only from the use of force that was
clearly excessive to the need and (3) the force used was
objectively unreasonable.” Williams v. Bramer, 180 F.3d 699, 703
(5th Cir. 1999).
18
We assume this happened, though it was denied by Courtney,
and the other officers present heard no such thing.
23
pointed their weapons directly or specifically at her. By her own
admission, Johnson was never hostilely or forcefully touched by
Courtney or any of the officers. Once the officers became aware
that Howard was not present they treated her with respect and
concern; Courtney helped her up and asked her if she was alright,
Courtney and Marshall apologized to her, Marshall said her door
would be paid for, left his card, and asked if she was alright or
needed medical assistance, and Johnson advised that she was alright
and did not need assistance. The evidence does not suffice to
support a finding that Courtney used constitutionally excessive
force against Johnson. See, e.g., Hinojosa v. City of Terrell, 834
F.2d 1223, 1230-32 (5th Cir. 1988). Accordingly, the district
court did not err in granting Courtney’s motion for summary
judgment as to this claim.
5. Nacogdoches County
Johnson complains on appeal of the district court’s grant of
summary judgment in favor of Nacogdoches County on her claim based
on the County’s alleged policy or practice of not requiring – as
opposed to leaving to discretion in individual instances – the
updating (by means such as utility records, surveillance or the
like) of the information in the Sheriff’s Office files concerning
the address of a party for whom an arrest warrant had been issued
before furnishing that address information to an officer who was to
execute the warrant. Johnson also complains in passing of the
24
district court’s grant of summary judgment in favor of the County
on her claim that the County failed to adequately train Mendiola
that he was required to do such updating.
(a) Johnson’s primary argument on appeal in support of these
contentions is that since May 2002 the district court had limited
discovery to qualified immunity issues and events surrounding the
entry into Johnson’s house and as a consequence “it is
fundamentally unfair to deny Plaintiff Johnson the opportunity to
prove her allegations concerning the existence of a deficient
actual policy.”
The County responds to this by asserting that Johnson has
waived her discovery complaint. The County observes that after
Johnson filed her second amended complaint (her final pleading),
the County and the other defendants on November 8, 2002, filed a
motion to suspend the pretrial deadlines, noting, among other
things, that “Defendant County of Nacogdoches anticipates filing a
motion for summary judgment as well, which will likely lead to
discovery by the Plaintiff.” At that time, the district court’s
June 24, 2002 scheduling order provided that November 21, 2002 was
the deadline for filing dispositive motions and December 1, 2002
was the discovery deadline; final pretrial conference was set for
January 6, 2003 and jury selection for January 7, 2003. On
November 18, Johnson filed her opposition to the motion to suspend
the deadlines, asserting that she “is prepared to comply with all
25
of the deadlines and opposes any delay in the trial.” The record
does not reflect any ruling on the motion to suspend the pretrial
deadlines.
On November 21, 2002, the County filed its motion for summary
judgment. On December 2, 2002, Johnson filed her response to the
County’s motion. The response initially notes the May 2002
limitation on discovery and asserts that “the motion is premature
and without merit.” The body of the response argues at length the
merits of the motion, asserting that Mendiola’s disposition
reflects that his actions in respect to furnishing Howard’s address
in the bust out package was consistent with longstanding County
policy, that he was not disciplined for furnishing the 419 Otis
Street address, and that he was not required, and hence was not
trained, to update the address before furnishing it. The response
also argues that “a municipality is equally responsible whether an
action is taken repeatedly or only once after a deficient policy is
established.”19 The response does not request a postponement of
ruling on the County’s motion, and the only prayer for relief is
that the County’s motion “be in all things denied.” The County’s
December 9, 2002 reply to Johnson’s response, among other things,
replies to Johnson’s brief comments about lack of discovery by
19
The response states in a footnote that “Johnson has not
been allowed to do any discovery concerning the number of
victims.” The record does not reflect any attempt to make any
such discovery.
26
calling the district court’s attention to the above referenced
portions of the County’s motion to suspend the pretrial deadlines
and Johnson’s opposition to it. In the meantime, all parties had
on December 6, 2002, filed their joint proposed pretrial order,
listing contested issues of fact and law, including all those
applicable to the claims against and defenses of the County,
stating that trial would probably last two days plus jury
selection, and listing outstanding pending motions, including the
County’s motion for summary judgment (as well as the summary
judgment motions of all the other defendants) and the motion to
suspend pretrial deadlines, but not including any motion to
postpone ruling on or to continue the County’s motion for summary
judgment (or the trial itself) nor any motion under Fed. R. Civ. P.
56(f) or for any discovery. On December 17, the district court,
sua sponte, continued the previous January 6 and 7, 2003 settings
for final pretrial conference and jury selection, and set the
motions of the individual defendants for summary judgment on
qualified immunity for oral argument on January 6, 2003, and on
that date those particular motions were heard and were taken under
advisement.20 On January 15, 2003, the court ordered mediation
before the Magistrate Judge who on January 21 reported that Johnson
had settled with Cain, Lightfoot and the City, but that mediation
20
At the January 6, 2003 hearing it was announced that
Johnson had settled with Marshall and the United States.
27
had reached impasse between Johnson, Courtney, Mendiola and the
County. Nothing further transpired until on March 4, 2003, Johnson
filed her supplemental response to the motions for summary judgment
of the County, Courtney, and Mendiola, in which Johnson merely
addressed the Supreme Court’s grant of certiorari in United States
v. Banks, supra.
Nothing further transpired until on March 13, 2003, the
district court filed its memorandum opinion holding that Courtney,
Mendiola and the County were entitled to summary judgment. With
respect to the County, the district court ruled, inter alia: that
“the facts alleged in the Second Amended Complaint do not tend to
show that the County . . . policymakers adopted or continued any
such policy [as alleged] in deliberate indifference to the
constitutional rights of its inhabitants” in as much as Johnson
“relies solely on this incident” and “pleads no other facts or
circumstances;” that essentially the same deficiencies were present
in Johnson’s failure to train allegations; that “DEA agent Marshall
supervised the March 9, 2002, raid. Any mistakes that day fail to
rise above the ordinary negligence of individual officers and
cannot be attributed to their government employers;” and, that the
County “meets its burden of establishing that the record, taken as
a whole, indicates that there is no genuine issue as to any
material fact regarding Johnson’s § 1983 claims against it.”
Considering the record as a whole, we reject Johnson’s
28
complaint on appeal concerning lack of discovery as to the County’s
motion for summary judgment. To begin with, when in November 2002
the defendants moved to suspend the pretrial deadlines, noting that
the County was going to file a motion for summary judgment “which
will likely lead to discovery by plaintiff,” Johnson opposed the
motion stating she was then “prepared to comply with all the
deadlines and opposes any delay in the trial.” At that time, the
discovery deadline was set to expire in about two weeks and trial
was set to begin in some seven weeks. Within some three weeks, the
parties (after the timely filing of the County’s summary judgment
motion) filed their joint pretrial order, plainly in contemplation
of the January 7, 2003 trial date. No party ever filed a motion to
continue the trial date. Although Johnson’s response to the
County’s summary judgment motion stated the motion was premature,
the response addressed the motion on its merits, did not request
any sort of postponement of ruling and prayed only that the motion
be “in all things denied.” Johnson did not respond to the County’s
reply which had noted Johnson’s statements in her above referenced
opposition to the motion to suspend deadlines. Although Johnson
later filed a supplemental response to the County’s summary
judgment motion, this response says nothing about prematurity and
did not request any sort of postponement of ruling. Moreover,
Johnson never filed any motion to lift any restrictions on
discovery or to extend the discovery deadlines, which expired
29
December 1, 2002, nor did she ever file any discovery request which
was denied, nor did she ever file any motion or affidavit under
Fed. R. Civ. P. 56(f). And Johnson did not otherwise inform the
court how additional discovery would likely create a genuine issue
of material fact. Indeed, her second amended complaint, her final
pleading, does not allege, even generally or on information and
belief, that the County’s asserted policy of not requiring updating
of Sheriff’s Office address records (such as by surveillance or
checking with neighbors or utility records) before furnishing that
address information to officers who were going to serve an arrest
warrant, ever resulted in any other similar incident where the
officers serving the warrant made a nonconsensual entry into a
house where the person named in the warrant did not reside.
Finally, Johnson did conduct discovery on County policy and its
effects, including, but not limited to, Mendiola’s deposition, and
the record reflects no instance where any specific discovery sought
by Johnson was denied.
Under all these circumstances, Johnson has not shown that the
district court abused its discretion in proceeding to rule in mid
March 2003 on the County’s motion for summary judgment
notwithstanding its May 2002 order limiting discovery. See Stearns
Airport Equipment Co. Inc. v. FMC Corp., 170 F.3d 518, 535 (5th
Cir. 1999) (a “Rule 56(f) motion must demonstrate . . . how the
additional discovery will likely create a genuine issue of material
30
fact” and a district court does not abuse its discretion in denying
such a motion where “it lacked specificity in identifying the
needed discovery”); Krim v. Banc Texas Group, Inc., 989 F.2d 1435,
1442 (5th Cir. 1993) (to postpone summary judgment ruling to obtain
further discovery a party must indicate to the court “why he needs
additional discovery and how the additional discovery will create
a genuine issue of material fact”). See also United States v.
Bloom, 112 F.3d 200, 205 n.17 (5th Cir. 1997); Porter v. Delta Air
Lines Inc., 98 F.3d 881, 887 (5th Cir. 1996); Washington v.
Allstate Ins. Co., 901 F.2d 1281, 1285 (5th Cir. 1990).
(b) It is clear that a municipality may not be held liable
under section 1983 on the basis of respondeat superior. Monell v.
Department of Social Services, 98 S.Ct. 2018 (1978). A
municipality’s liability under section 1983 requires, among other
things, either the unconstitutional action of municipal
policymakers or a municipal policy. Hence the only County
officials or employees whose conduct is complained of are Mendiola
and Courtney, each of whom was only a deputy sheriff and hence was
not a policymaker. Turner v. Upton County, Texas, 915 F.2d 133,
136 (5th Cir. 1990). Municipal policy for purposes of section 1983
liability may consist of
“1. A policy statement, ordinance, regulation, or
decision that is officially adopted and promulgated by
the municipality’s lawmaking officers or by an official
to whom the lawmakers have delegated policy-making
authority; or
31
2. A persistent, widespread practice of city officials
or employees, which, although not authorized by
officially adopted and promulgated policy, is so common
and well settled as to constitute a custom that fairly
represents municipal policy. Actual or constructive
knowledge of such custom must be attributable to the
governing body of the municipality or to an official to
whom that body had delegated policy-making authority.”
Johnson v. Moore, 958 F.2d 92, 94 (5th Cir. 1992).
Johnson has not alleged (nor is there any evidence of) a
formal or official policy of the first kind above described. We
assume, arguendo only, that she has sufficiently alleged and shown
a policy of the second kind, a longstanding custom and practice of
not uniformly requiring (but instead leaving to discretion in
individual instances) sheriff’s department personnel to update (by
means such as surveillance or checking with neighbors or utility
companies or the like) the most recent address for an individual
reflected in the jail (or Sheriff’s Office) records before
furnishing that address to officers who were going to execute an
arrest warrant for the individual.
For a municipality to be liable on account of its policy, the
plaintiff must show, among other things, either (1) that the policy
itself violated federal law or authorized or directed the
deprivation of federal rights or (2) that the policy was adopted or
maintained by the municipality’s policymakers “with ‘deliberate
indifference’ as to its known or obvious consequences . . . A
showing of simple or even heightened negligence will not suffice.”
Board of County Comm’rs of Buyan County v. Brown, 117 S.Ct. 1382,
32
1390 (1997). See also, e.g., City of Canton, Ohio v. Harris, 109
S.Ct. 1197, 1206 (1989) (municipal liability requires “deliberate
indifference to the constitutional rights of its [the City’s]
inhabitants”); Burge v. St. Tammany Parish, 336 F.3d 363, 370 (5th
Cir. 2003); Piotrowski v. City of Houston, 237 F.3d 567, 579 (5th
Cir. 2001). Here, the only federal right allegedly infringed as a
result of the alleged policy is the right to be free of unlawful
entry into one’s home. As reflected in our above discussion
concerning Mendiola, the alleged policy does not facially violate
that right and does not purport to either authorize or direct any
entry into a home or residence. Hence, Johnson must show that the
policy was adopted or maintained with deliberate indifference to
the known or obvious fact that such constitutional violations would
result. That “generally requires that a plaintiff demonstrate at
least a pattern of similar violations.” Burge, 336 F.3d at 370
(internal quotations omitted); Cozzo v. Tangipahoa Parish Council,
279 F.3d 273, 286-88 (5th Cir. 2002); McClendon v. City of
Columbia, 258 F.3d 432, 441-43 (5th Cir. 2001), rev’d en banc in
other respects, this portion of opinion reinstated, 305 F.3d 314,
321 n.3 (5th Cir. 2002); Thompson v. Upshur County, 245 F.3d 447,
449 (5th Cir. 2001); Snyder v. Trepagnier, 142 F.3d 791, 798-99
(5th Cir. 1998); Tomkins v. Belt, 828 F.2d 298, 304-05 (5th Cir.
1987). Here Johnson did not plead that there had ever been any
similar incidents (or allege any other facts suggesting that the
33
alleged policy was adopted or maintained with deliberate
indifference to constitutional rights), and the evidence, as
discussed in part 3 above in connection with Mendiola, shows
without contradiction that no similar incident had occurred in
Mendiola’s some ten years on the job and that officers with arrest
warrants to execute generally did so when they saw the named party
and would go to a residence to do so only if they knew the party
named in the arrest warrant and knew he was there, and did not
“kick in doors.” There is no contrary evidence. Johnson relies
solely on this single incident. The claim against the County hence
fails for a lack of any showing of deliberate indifference.21
(c) Finally, and in all events, Johnson’s claims against the
County were properly dismissed because even if Johnson’s
constitutional rights were violated, it is clear that no complained
of County policy or failure to train was the “moving force” behind
that alleged violation. As we said in Fraire v. City of Arlington,
957 F.2d 1268, 1281 (5th Cir. 1992):
“[A] direct causal connection must exist between the
policy and the alleged constitutional deprivation. This
connection must be more than a mere ‘but for’ coupling
between cause and effect. To form the basis of liability
under § 1983, a municipal policy must be affirmatively
linked to the constitutional violation and be the moving
force behind it.” (footnotes omitted; emphasis added).
21
For the same reason, Johnson’s only other complaint on
appeal respecting the County, namely failure to train Mendiola to
always update (from outside sources) address information in the
sheriff’s records before furnishing it to officers who would
execute warrants, likewise fails.
34
See also City of Canton, 109 S.Ct. at 1206 (“must be closely
related to the ultimate injury” and have “actually caused” the
constitutional violation complained of); Piotrowski, 237 F.3d at
581; Pineda v. City of Houston, 291 F.3d 325, 334 (5th Cir. 2002).
What happened at 419 Otis Street starting at about 9 a.m. on March
9, 2001, was entirely determined by DEA agent Marshall, who was in
charge and whose directions all officers present were required to
and did follow. The warrants were to be served according to DEA
procedures. Marshall had not been informed that Howard was, or was
likely, then present at 419 Otis Street. If Marshall had simply
waited some twenty or thirty seconds more until Johnson arrived at
the door, she would doubtless have informed him that Howard did not
live there and was not then present, and likely would have allowed
the officers to enter to verify that.22 Marshall’s decision to
force entry, rather than seek entry by consent, and to do so
without further information, was entirely his own decision. There
is no evidence suggesting that Marshall made that decision for any
reason related to any County policy or any understanding thereof
22
And, if she did not allow entry, the house could have
been placed under surveillance by some of the team members
(and/or by other officers summoned) and the rest could have
continued to serve other warrants. And, Marshall did not seek to
attain a consent to search form or seek advice from the Assistant
United States Attorney or the DEA command center as the DEA
operational plan called for if such consent could not be
obtained.
35
which he may have had,23 or for any reason other than that he
thought that decision to be appropriate in the light of his own
training and experience as a DEA agent and DEA policy and
procedures. Indeed the uncontradicted evidenced is that Marshall’s
decision in this respect was contrary to County policy and
practice. If there was causative fault on the part of the
authorities, the fault was Marshall’s and/or the DEA’s, not the
County’s. Cf. Rheuark v. Shaw, 628 F.2d 297, 305-06 (5th Cir.
1980) (county’s curtailing budget for court reporters not
“proximate cause” of unconstitutional delay in preparation of
statement of facts where “[t]he party primarily at fault” was the
district judge).
Conclusion
For the foregoing reasons, the judgment of the district court
is
AFFIRMED.
23
There is no evidence Marshall had any information
concerning any County policy.
36