894 F.2d 170 (5th Cir. 1990), 88-6177, Dayse v. Schuldt

Docket Nº88-6177
Citation894 F.2d 170
Party NameJohn Junior DAYSE, Plaintiff-Appellant, v. George SCHULDT, Chief of Police, et al., Defendants-Appellees.
Case DateFebruary 15, 1990
CourtUnited States Courts of Appeals, Court of Appeals for the Fifth Circuit

Page 170

894 F.2d 170 (5th Cir. 1990)

John Junior DAYSE, Plaintiff-Appellant,

v.

George SCHULDT, Chief of Police, et al., Defendants-Appellees.

No. 88-6177

United States Court of Appeals, Fifth Circuit

February 15, 1990

Page 171

John Junior Dayse, pro se.

Appeal from the United States District Court for the Eastern District of Texas.

Before WILLIAMS, JOLLY and DUHE, Circuit Judges.

JERRE S. WILLIAMS, Circuit Judge:

Appellant John Dayse is an inmate in the Texas Department of Corrections. He filed this civil rights action under 42 U.S.C. Sec. 1983 against Beaumont Police Chief George Schuldt, two Beaumont police officers later identified as D. Boteler and M. Manning, Jefferson County District Attorney Tom Maness, Sheriff Richard Culbertson, and Justice of the Peace Harold Engstrom. Dayse alleged that Chief Schuldt and Maness conspired to deprive him of the opportunity to defend himself against a charge of possessing "crack" cocaine. The charge is not related to the crime for which he is serving sentence. Dayse alleged that the police officers arrested him without probable cause and did not take him promptly before a magistrate. Dayse alleged that Sheriff Culbertson failed to have him promptly presented before the magistrate and that Justice Engstrom failed to find probable cause to detain him and also had not advised him of his rights. Dayse asked for a declaratory judgment that the defendants had violated his constitutional rights and rights under Texas law, injunctive relief, and compensatory damages.

The magistrate held a Spears hearing at which Dayse appeared and testified. Spears v. McCotter, 766 F.2d 179 (5th Cir.1985). The hearing tape has been filed as an exhibit but is inaudible. Dayse, in any event, does not dispute the magistrate's summary of the proceedings:

Plaintiff alleges that on the night of April 3, 1987, he was standing in a public place in the company of four other individuals. Two Beaumont police officers, since identified as D. Boteler and M. Manning, were apparently on routine patrol when they (according to their affidavit) observed Plaintiff drop a matchbox and place his foot on it. Upon inspecting the contents of the box, the officers discovered a substance they believed to be "crack," a form of cocaine, and arrested Plaintiff for possession of a controlled substance. Plaintiff relates the sequence of events somewhat differently: he states that the arresting officers could not possibly have seen who dropped the box since they were too far away at the time in question. He does not specifically deny placing his foot on the box, but rather alleges that the officers found the box on the ground in the immediate vicinity of five persons, one of whom was Plaintiff. He therefore maintains that the arrest was without probable cause.

Plaintiff's arrest occurred on a Friday night, but he did not appear in court until Monday morning, due to the unavailability of a magistrate over the weekend. When Plaintiff was taken before Justice of the Peace, Harold Engstrom, about sixty hours after his arrest, Defendant Engstrom allegedly failed to find probable cause and failed to inform Plaintiff of his rights.

The next day, Tuesday, Plaintiff was released, but was told that the investigation into his activities would continue. He contends that such silence constitutes

Page 172

an affirmative representation that there would be no further proceedings against him, and that therefore Defendants Maness and Schuldt must have entered into a conspiracy to conduct a secret investigation (resulting in an indictment) in order to foreclose Plaintiff's opportunity to either request an examining trial or to challenge the array of the grand jury.

Approximately two months following his initial arrest, Plaintiff was indicted. He was arrested pursuant to that indictment and held in custody for about seven months, when the case was dismissed pursuant to the motion of the assistant district attorney on the ground of the unavailability of one of the arresting officers as a critical witness.

The magistrate also considered documents sent to him by one of District Attorney Maness' assistants, including the affidavit for arrest warrant made by Officer Manning. These have been filed as exhibits in this Court.

In his report, the magistrate recommended dismissal of the action for failure to state a claim, Fed.R.Civ.P. 12(b)(6), and as frivolous, pursuant to 28 U.S.C. Sec. 1915(d). Dayse filed timely objections. After a de novo evaluation, the district court adopted the magistrate's report and dismissed the action on grounds of failure to state a claim and frivolousness. Dayse filed a timely notice of appeal.

ISSUE 1:

Dayse urges that the district court erred by holding that Judge Engstrom and District Attorney Maness were entitled to absolute immunity. Dayse asserts that Judge Engstrom failed to inform him at the probable cause hearing which led to his release that he still would be given an examining trial before indictment if he was indicted. In support of his claim, Dayse cites only Tex.Code Crim.Proc.Ann. art. 15.17 (Vernon Supp.1989), which provides that an arrestee should be advised of various rights, including the right to an examining trial. He speculates that if he had known he had the right to an examining trial and counsel, he might not have been indicted. Dayse seems to argue that Maness violated his rights by continuing to investigate his...

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38 practice notes
  • 892 S.W.2d 56 (Tex.App. - Houston [1 Dist.] 1994), 01-94-00284, Bradt v. West
    • United States
    • Texas Court of Appeals of Texas
    • December 22, 1994
    ...the State's case. See Kimmel v. Leoffler, 791 S.W.2d 648, 651 (Tex.App.--San Antonio 1990, writ denied) (per curiam); Dayse v. Schuldt, 894 F.2d 170, 172 (5th Cir.1990); Keeble v. Cisneros, 664 F.Supp. 1076, 1078 (S.D.Tex.1987). Our conclusion also promotes public policy considerations that......
  • 831 F.Supp. 321 (S.D.N.Y. 1993), 92 Civ. 7972, Sluys v. Hand
    • United States
    • Federal Cases United States District Courts 2nd Circuit Southern District of New York
    • September 13, 1993
    ...of other Page 326 debt collection activity. See Mary Ann Pensiero, Inc. v. Lingle, 847 F.2d 90, 95 (3d Cir. 1988); Dayse v. Schuldt, 894 F.2d 170, 173-74 (5th Cir. 1990). Further factual development will undoubtedly establish whether or not plaintiff can sustain his burden of showing that d......
  • 66 F.Supp.2d 825 (S.D.Tex. 1999), Civ. A. H-98-0912, Weingarten Realty Investors v. Albertson's, Inc.
    • United States
    • Federal Cases United States District Courts 5th Circuit Southern District of Texas
    • September 24, 1999
    ...allegations of conspiracy cannot, absent reference to material facts,' constitute grounds for § 1983 relief." Dayse v. Schuldt, 894 F.2d 170, 173 (5th Cir.1990) (quoting Arsenaux, 726 F.2d at 1024); see Russell v. Millsap, 781 F.2d 381, 383 (5th Cir.1985), cert. denied, 479 U.S. 826, 1......
  • 927 F.Supp. 990 (S.D.Tex. 1996), C. A. H-94-3565, Suttles v. United States Postal Service
    • United States
    • Federal Cases United States District Courts 5th Circuit Southern District of Texas
    • May 15, 1996
    ...938 F.2d 565, 569 (5th Cir. 1991) (quoting Lynch v. Cannatella, 810 F.2d 1363, 1369-70 (5th Cir. 1987)); see generally Dayse v. Schuldt, 894 F.2d 170, 173 (5th Cir. 1990) (quoting Arsenaux v. Roberts, 726 F.2d 1022, 1024 (5th Cir. 1982)); Irwin v. Veterans Admin., 874 F.2d 1092, 1095 (5th C......
  • Request a trial to view additional results
38 cases
  • 892 S.W.2d 56 (Tex.App. - Houston [1 Dist.] 1994), 01-94-00284, Bradt v. West
    • United States
    • Texas Court of Appeals of Texas
    • December 22, 1994
    ...the State's case. See Kimmel v. Leoffler, 791 S.W.2d 648, 651 (Tex.App.--San Antonio 1990, writ denied) (per curiam); Dayse v. Schuldt, 894 F.2d 170, 172 (5th Cir.1990); Keeble v. Cisneros, 664 F.Supp. 1076, 1078 (S.D.Tex.1987). Our conclusion also promotes public policy considerations that......
  • 831 F.Supp. 321 (S.D.N.Y. 1993), 92 Civ. 7972, Sluys v. Hand
    • United States
    • Federal Cases United States District Courts 2nd Circuit Southern District of New York
    • September 13, 1993
    ...of other Page 326 debt collection activity. See Mary Ann Pensiero, Inc. v. Lingle, 847 F.2d 90, 95 (3d Cir. 1988); Dayse v. Schuldt, 894 F.2d 170, 173-74 (5th Cir. 1990). Further factual development will undoubtedly establish whether or not plaintiff can sustain his burden of showing that d......
  • 66 F.Supp.2d 825 (S.D.Tex. 1999), Civ. A. H-98-0912, Weingarten Realty Investors v. Albertson's, Inc.
    • United States
    • Federal Cases United States District Courts 5th Circuit Southern District of Texas
    • September 24, 1999
    ...allegations of conspiracy cannot, absent reference to material facts,' constitute grounds for § 1983 relief." Dayse v. Schuldt, 894 F.2d 170, 173 (5th Cir.1990) (quoting Arsenaux, 726 F.2d at 1024); see Russell v. Millsap, 781 F.2d 381, 383 (5th Cir.1985), cert. denied, 479 U.S. 826, 1......
  • 927 F.Supp. 990 (S.D.Tex. 1996), C. A. H-94-3565, Suttles v. United States Postal Service
    • United States
    • Federal Cases United States District Courts 5th Circuit Southern District of Texas
    • May 15, 1996
    ...938 F.2d 565, 569 (5th Cir. 1991) (quoting Lynch v. Cannatella, 810 F.2d 1363, 1369-70 (5th Cir. 1987)); see generally Dayse v. Schuldt, 894 F.2d 170, 173 (5th Cir. 1990) (quoting Arsenaux v. Roberts, 726 F.2d 1022, 1024 (5th Cir. 1982)); Irwin v. Veterans Admin., 874 F.2d 1092, 1095 (5th C......
  • Request a trial to view additional results