973 F.2d 449 (5th Cir. 1992), 90-2666, Martin v. Thomas

Docket Nº:90-2666.
Citation:973 F.2d 449
Party Name:Charlesworth R. MARTIN, Plaintiff-Appellee, v. Theodore THOMAS, Milo K. Shepard, Robert L. Prater and L.L. Clarkson, Defendants-Appellants.
Case Date:September 30, 1992
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit

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973 F.2d 449 (5th Cir. 1992)

Charlesworth R. MARTIN, Plaintiff-Appellee,


Theodore THOMAS, Milo K. Shepard, Robert L. Prater and L.L.

Clarkson, Defendants-Appellants.

No. 90-2666.

United States Court of Appeals, Fifth Circuit

September 30, 1992

Page 450

[Copyrighted Material Omitted]

Page 451

J.D. Hooper, Lou Bright, Asst. Attys. Gen., Dan Morales, Atty. Gen., Austin, Tex., for defendants-appellants.

David T. Lopez, Houston, Tex., for plaintiff-appellee.

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


JERRE S. WILLIAMS, Circuit Judge:

Dr. Martin challenged the propriety of his arrest and prosecution by bringing a section 1983 suit for excessive force and arrest without due process. He also brought a pendent state law claim for malicious prosecution. The jury found in favor of Dr. Martin. Appellants Thomas, Shepard, Prater, and Clarkson all appeal the jury finding of malicious prosecution, claiming improper jury instructions, insufficient evidence, lack of jurisdiction, and qualified immunity. Appellants Thomas and Shepard challenge the verdict of excessive force claiming improper jury instruction and qualified immunity. Appellant Thomas also challenges the verdict of an arrest without due process claiming the evidence supports a finding of probable cause. Prater and Clarkson correctly assert the malicious prosecution verdict against them is not supported by sufficient evidence, and we reverse that ruling. Appellants' other objections, however, are without merit, and we, therefore, affirm the verdicts.


The outcome of this case rests largely upon credibility determinations by the jury. The facts presented by the plaintiff are in stark contrast to the facts presented by the defendants, and the only evidence is the parties' testimony as well as reports and letters submitted by the parties describing the events in question. Thus, the jury was required to determine who prevailed based on whom the jury believed.

The pertinent facts that are not in dispute are relatively few. On July 12, 1982, Dr. Martin, a professor at Texas Southern University ("TSU"), had not yet been paid for a course he had taught, and he was informed that the man to whom he needed to talk was in the gymnasium participating in preregistration. Accordingly, Martin proceeded to the gym. After entering the gym, he was subsequently arrested by TSU police officers.

It is also not in dispute that a substantial sum of money had been stolen during preregistration the previous year. Consequently, Sergeant Brooks, the officer in charge of police operations, had given the TSU police officers on duty specific instructions as to who could enter the gym and through what entrance visitors could enter.

The dispute, as to the facts, begins when Dr. Martin arrived at the gymnasium. Martin claims he went to the back door of the gymnasium and knocked. Officer Shepard invited him into the gym. Martin showed his I.D. to the officer, but the I.D. stated he was a staff member and not a faculty member. Martin told Officer Shepard that he would look and find someone

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who could identify him as a faculty member. 1 Officer Shepard turned away from Martin because there was another knock at the door. At that time, Martin proceeded into the gym to try and find someone who could identify him.

Dr. Martin then maintains that he heard Officer Shepard say "Just push this guy out of here," as Officer Thomas approached him. Martin showed Officer Thomas his I.D., but Officer Thomas ignored it as he grabbed Martin. Martin protested that Thomas "should not do that," and Thomas responded by twisting the professor's arms behind his back and throwing him down on the bleachers. The officers took Martin outside, placed handcuffs on him, and threw him on the hood of a police car. Dean Prater, dean of the School of Technology where Dr. Martin taught, witnessed the events outside the gymnasium but did not come to Martin's aid. Martin was taken to jail where he spent seven hours. Martin claims that at no time did he physically threaten the officers or resist the arrest.

The police officers offer a different version of the events. Officer Shepard asserts that he allowed Dr. Martin into the gym but told him that he had to stand inside the doorway, adding that if he wanted to enter the gym he could use the front door. Martin protested that he was a faculty member and could go anywhere he wanted. He walked towards the center of the gym, and Officer Shepard told Officer Thomas to turn Martin around and send him out of the gym. Officer Thomas asked Martin to leave. Martin became verbally abusive. Again, the two officers asked him to leave, but he refused. Martin raised his hand as if to strike Officer Shepard. The officers tried to restrain Martin, and they all fell into the bleachers. The officers maintain that throughout these events, Martin was kicking and screaming and physically threatening the officers. The officers took Martin to the police car, and finally put him into the police car after much trouble because of Martin's kicking. They then took Dr. Martin to jail.

Dr. Martin was charged with resisting arrest. He claims he later had a meeting with L.L. Clarkson, the academic vice-president, and Theodore Andrews, the TSU counsel. He was told that charges against him would be dropped if he agreed to drop all his charges and absolve TSU from any penalties. He refused the offer. Dr. Martin thereafter was tried and acquitted of resisting arrest. In December 1982, Martin received a letter stating that TSU would not renew his contract.

Dr. Martin brought suit against numerous TSU employees, including Officers Thomas and Shepard, Dean Prater, and Mr. Clarkson. The defendants were sued in both their individual and official capacities. The jury apparently believed Dr. Martin's version of what happened based on its special verdicts in response to sixteen questions. The jury found that Officer Shepard had arrested Martin without due process of law and awarded Martin $5,000. They also found that both Thomas and Shepard had used excessive force and awarded Martin $20,000 for humiliation and emotional distress. The jury finally found that Thomas, Shepard, Prater, and Clarkson had maliciously prosecuted Martin, and the jury awarded a total of $13,200 in compensatory damages and $7,001 in punitive damages for this injury. Appellants challenge these jury findings.


The jury found Dr. Martin's arrest by Officer Shepard was without due process of law in violation of 42 U.S.C. § 1983. There are two essential elements of a section 1983 action: (1) the conduct in question must be committed by a person acting under the color of state law; and (2)

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the conduct must deprive the plaintiff of a right secured by the Constitution or the laws of the United States. Augustine v. Doe, 740 F.2d 322, 324-25 (5th Cir.1984); Thomas v. Sams, 734 F.2d 185, 190-91 (5th Cir.1984), cert. denied, 472 U.S. 1017, 105 S.Ct. 3476, 87 L.Ed.2d 612 (1985). The parties do not dispute that Shepard was acting under the color of state law at the time of the arrest, and the right to be free from illegal arrest is a right secured by the Constitution.

A police officer must make a determination of probable cause before he causes any significant pretrial restraint of liberty. Duckett v. City of Cedar Park, Texas, 950 F.2d 272, 278 (5th Cir.1992). In making a determination of probable cause, we do not require a police officer to be perfect, nor do we want him always to err on the side of caution out of the fear of being sued. Hunter v. Bryant, --- U.S. ----, ----, 112 S.Ct. 534, 537, 116 L.Ed.2d 589 (1991). We do, however, require a police officer to make a reasonable determination whether probable cause exists:

Whether an arrest was constitutionally valid depends in turn upon whether, at the moment the arrest was made, the officers had probable cause to make it--whether at that moment the facts and circumstances within their knowledge and of which they had reasonably trustworthy information were sufficient to warrant a prudent man in believing that the petitioner had committed or was committing an offense.

Beck v. State of Ohio, 379 U.S. 89, 91, 85 S.Ct. 223, 225, 13 L.Ed.2d 142 (1964). See also, United States v. Bustamante-Saenz, 894 F.2d 114, 118 (5th Cir.1990); United States v. Raborn, 872 F.2d 589, 593 (5th Cir.1989). "Because one of the factors is the extent of the intrusion, it is plain that reasonableness depends on not only when a seizure is made, but also how it is carried out." Tennessee v. Garner, 471 U.S. 1, 8, 105 S.Ct. 1694, 1699, 85 L.Ed.2d 1 (1985).

Officer Shepard goes to great lengths arguing that the facts support a finding of probable cause to arrest. He maintains Martin's entry into the gym constituted criminal trespass, 2 and Martin's kicking, screaming, and making of threats constituted assault, disorderly conduct, and...

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