766 Fed.Appx. 20 (5th Cir. 2019), 18-20155, Shipman v. Sowell

Docket Nº:18-20155
Citation:766 Fed.Appx. 20
Opinion Judge:EDITH H. JONES, Circuit Judge:
Party Name:Leslie W. SHIPMAN, also known as in error as Lester W. Shipman, Plaintiff-Appellant v. Sheriff Donald SOWELL; Sheriff Tommy Gage; Joseph Sclider; David Cook; Alton Neely; Tuck McLain; Grimes County; Montgomery County, Defendants-Appellees
Attorney:Ty Clevenger, Brooklyn, NY, for Plaintiff-Appellant Larry James Simmons, Jr., Carmen Rejda-Ponce, Kelli Burris Smith, Germer, P.L.L.C., Houston, TX, for Defendants-Appellees Donald Sowell, David Cook, Tuck McLain, Grimes County Daniel Dale Plake, County Attorney’s Office for the County of Montgom...
Judge Panel:Before JONES, HAYNES, and OLDHAM, Circuit Judges
Case Date:March 21, 2019
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit
 
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766 Fed.Appx. 20 (5th Cir. 2019)

Leslie W. SHIPMAN, also known as in error as Lester W. Shipman, Plaintiff-Appellant

v.

Sheriff Donald SOWELL; Sheriff Tommy Gage; Joseph Sclider; David Cook; Alton Neely; Tuck McLain; Grimes County; Montgomery County, Defendants-Appellees

No. 18-20155

United States Court of Appeals, Fifth Circuit

March 21, 2019

UNPUBLISHED

Editorial Note:

Please Refer Federal Rule of Appellate Procedure Rule 32.1. See also U.S.Ct. of App. 5th Cir. Rules 28.7 and 47.5.

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[Copyrighted Material Omitted]

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Appeal from the United States District Court for the Southern District of Texas, USDC No. 4:16-CV-692

Ty Clevenger, Brooklyn, NY, for Plaintiff-Appellant

Larry James Simmons, Jr., Carmen Rejda-Ponce, Kelli Burris Smith, Germer, P.L.L.C., Houston, TX, for Defendants-Appellees Donald Sowell, David Cook, Tuck McLain, Grimes County

Daniel Dale Plake, County Attorney’s Office for the County of Montgomery, Conroe, TX, for Tommy Gage, Joseph Sclider, Alton Neely, Montgomery County

Before JONES, HAYNES, and OLDHAM, Circuit Judges

OPINION

EDITH H. JONES, Circuit Judge:[*]

This is an appeal of the district court’s dismissal of multiple claims brought by the Appellant under 42 U.S.C. § 1983 and state law for what he asserts was an unjustifiable investigation and prosecution, combined with seizure of vehicles associated with his attempt at conducting an auto auction. For the following reasons, the district court’s judgment is AFFIRMED.

I.

Leslie Shipman and law enforcement officers in Montgomery and Grimes counties, Texas, are well-acquainted with one another. Officers in the "Montgomery County Auto Theft Task Force" (the "Task Force"), which was operated jointly by the Montgomery and Grimes county sheriffs’ departments, suspected that Shipman was selling stolen vehicles out of his auto body shop. Shipman accuses the police of having a vendetta against him. After multiple run-ins with local police in 2013-14, including arrests and citations for offenses related to improperly selling or transporting vehicles, Shipman decided to sell his remaining inventory and move out of town. When Shipman, his business partner Jerry Williams, and an auctioneer named Israel Curtis (whose license had lapsed) organized a car auction in June 2015, the Task Force took notice. They suspected that Shipman "did not have proper title paperwork for the vehicles" he planned to sell, partly because

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prior police reports had indicated that Shipman was dealing vehicles without proper titles.

After a drive by the property confirmed that "numerous vehicles at [Shipman’s] shop were titled in third party names," law enforcement requested a warrant to search the property. A Grimes County Magistrate Judge found probable cause to suspect that Shipman and his companions were conducting an unlicensed auction and illegally selling vehicles without proper paperwork. After the auction began, authorities executed the warrant and seized fifty-six vehicles and an assortment of paperwork from Shipman’s auto shop. Shipman was subsequently indicted by a Texas grand jury for engaging in organized criminal activity by tampering with government records in violation of Texas Penal Code § § 37.10(a) and 71.02(a)(13).

Shipman responded by filing a federal case against the Task Force members and both counties, seeking damages under § 1983 for violations of his First, Fourth, and Fourteenth Amendment rights and state tort violations. While Shipman’s federal suit was pending, the state criminal case was resolved by his guilty plea in state court to the lesser included charge of selling a vehicle without a license in violation of Texas Transportation Code § 501.109, a Class C Misdemeanor. When the state court accepted Shipman’s plea, it also held a hearing to facilitate the return of the seized vehicles. As the defendants acknowledge, no paperwork problems were found to have existed with respect to the seized vehicles, but the hearing extensively covered issues of uncertain ownership of many of the vehicles.

We have attempted to identify the precise claims raised by Shipman in his federal complaint, which alleged that several county officials violated his rights before and after the June 27 raid in a variety of ways: • First, Shipman alleged that Grimes County District Attorney Tuck McLain violated his First Amendment rights by seeking the grand jury indictment against him in retaliation after Shipman’s counsel published a blog post accusing the officials of misconduct. Shipman accused McLain of violating his Fourteenth Amendment rights by selectively prosecuting Shipman even though he knew the case was meritless; by advising the Task Force not to return Shipman’s business records; and by instructing his staff to discriminate against Shipman’s trial counsel by not "offer[ing] deferred adjudication to [his] clients."

• Second, Shipman alleged that the commander of the task force, Montgomery County officer Joseph Sclider, violated his Fourth and Fourteenth Amendment rights by making false statements to the magistrate judge to obtain the search warrant; by falsely stating on local TV suggesting that the vehicles seized in the raid may have been stolen; and by coercing a witness into stating that he had not given the men permission to sell his car.

• Third, Shipman alleged that Grimes County Sheriff Donald Sowell violated his Fourth Amendment rights by preventing the return of the vehicles and records "to prevent Mr. Shipman from financing his criminal defense and his civil litigation," even though the vehicles had "no evidentiary value." He also claimed that Sowell ratified misconduct by Sclider and the Task Force.

• Fourth, Shipman alleged that Montgomery County Sheriff Tommy Gage violated his Fourth Amendment rights by never investigating Sclider’s alleged misconduct after Shipman’s counsel sent

Page 25 Gage a letter notifying him about the misconduct, and by failing to supervise or train the Task Force officers.

• Finally, Shipman alleged state law tort claims including, inter alia, slander, tortious interference, and...

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