Bittakis v. City of El Paso
| Decision Date | 13 March 2007 |
| Docket Number | No. EP-05-0402-FM.,EP-05-0402-FM. |
| Citation | 480 F.Supp.2d 895 |
| Parties | Mark James BITTAKIS, Plaintiff, v. The CITY OF EL PASO, County of El Paso, El Paso Police Officers Krandell Chew, Laura Canonizado, J. Nevarez, Raul Prieto, District Attorney Jaime Esparza, and Assistant District Attorney Lisa Clausen, Defendants. |
| Court | U.S. District Court — Western District of Texas |
Michael R. (Mickey) Milligan, Attorney at Law, Sam Snoddy, Law Office, El Paso, TX, for Plaintiff.
Jennifer F. Callan, El Paso City Attorney's Office, Kitty Schild, El Paso County Assistant Attorney, Duane A. Baker, Attorney at Law, Jo Anne Bernal, Office of the County Attorney, El Paso, TX, for Defendants.
On this day, the Court considered "Defendants' Motion for Summary Judgment" ("Officers' Motion for Summary Judgment") [Rec. No. 90]; "Appendix of Material and Disputed Facts in Support of Defendants' Motion for Summary Judgment" [Rec. No. 91]; "Plaintiff Bittakis' Response to Defendant's Motion for Summary Judgment" ("Plaintiff's Response to Officers' Motion for Summary Judgment") [Rec. No. 97]; "Defendants' County of El Paso and Jaime Esparza, In his Official and Individual Capacity, Amended Motion to Dismiss, or in the Alternative, Motion for Summary Judgment" ("County's Motion for Summary Judgment") [Rec. No. 121]; "Plaintiffs Response to Defendants' County of El Paso and Jaime Esparza, In his Official Capacity and Individual Capacity, Amended Motion to Dismiss, or in the Alternative, Motion for Summary Judgment" ("Plaintiffs Response to County's Motion for Summary Judgment") [Rec. No. 141]; "Defendant City of El Paso's Motion for Summary Judgment" ("City's Motion for Summary Judgment") [Rec. No. 124]; "Appendix of Material and Disputed Facts in Support of Defendant City of El Paso's Motion for Summary Judgment" [Rec. No. 125]; "Plaintiffs Response to Defendant City of El Paso's Motion for Summary Judgment" ("Plaintiffs Response to City's Motion for Summary Judgment") [Rec. No. 135]; "City of El Paso's Reply to Plaintiffs Response to its Motion for Summary Judgment" ("City's Reply") [Rec. No. 136]; "City of El Paso's Objections to Plaintiffs Summary Judgment Evidence" ("City's Objections") [Rec. No. 137]; and "Plaintiffs Response to City of El Paso's Objections to Plaintiffs Summary Judgment Evidence" ("Plaintiffs Response to City's Objections") [Rec. No. 144]. After carefully considering the motions, responses, reply, case file, and applicable law, the Court finds that it should dismiss all of Plaintiffs claims against all Defendants.
Through the "First Amended Complaint of Mark James Bittakis, Application for Declaratory Judgment and Application for Injunctive Relief' [Rec. No. 2] ("Amended Complaint"), Plaintiff Mark James Bittakis ("Plaintiff') brings this action for relief for alleged violations of his First, Fourth, Fifth, Sixth, and Fourteenth Amendment rights pursuant to 42 U.S.C. § 1983. Plaintiff also claims relief pursuant to 42 U.S.C. §§ 1985, 1986, and 1988, as well as 18 U.S.C. §§ 1961-1968. Defendants are the City of El Paso ("the City"), County of El Paso ("the, County"), District Attorney Jaime Esparza ("Esparza"), Assistant District Attorney Lisa, Clausen ("Clausen")1, and El Paso Police Officers Krandell Chew ("Chew"), Laura Canonizado ("Canonizado"), Raul Prieto ("Prieto"), and J. Nevarez ("Nevarez") ("collectively, the officers"). Plaintiff also introduced a number of state claims against various defendants. Plaintiff additionally seeks a declaratory judgment holding the District Attorney Management System ("DIMS") agreement and manual illegal, unconstitutional, and void pursuant to Federal Rule of Civil Procedure 57 and 28 U.S.C. §§ 2201 and 2202. Further, Plaintiff asks the Court to permanently enjoin the City, County, and Esparza from utilizing DIMS.
In his Amended Complaint, Plaintiff contends that on January 30, 2005, he was scheduled to depart the El Paso Airport after performing work at Holloman Air Force Base. Plaintiff, a Florida resident, was a contractor working at the United States Elgin Air Force Base in Florida. At the El Paso Airport, a Transportation Security Administration ("TSA") inspector examined Plaintiffs luggage and found a ziplock container. Inside the container were two small sandwich-type bags filled with a white powdery substance. TSA officials subsequently summoned El Paso Police Department officers to the airport. Officer Chew responded first and took possession of the white powdery substance. Officer Chew field-tested the substance twice. Each time, the substance tested positive for cocaine. The officers advised Plaintiff of the test results. Plaintiff claimed that the white powdery substance was laundry detergent. If there was cocaine in leis luggage, Plaintiff maintained someone had planted it there.
El Paso Police Department officers arrested Plaintiff for possession of cocaine. The responding officers next called the District Attorney's Information Management System ("DIMS")2 attorney on duty, whom Plaintiff alleges was Clausen. After the El Paso County District Attorney's Office ("DA's Office") accepted the case for prosecution, the officers transported Plaintiff to the El Paso County Detention Center. On the day following the arrest, January 31, 2005, Defendants claim Plaintiff was taken before Magistrate James Carter, who advised Plaintiff of his rights, approved Plaintiffs bond, and determined it was appropriate to detain Plaintiff in jail.3 Plaintiff describes the process of appearing before Judge Carter in the following manner:
While several arrestees were waiting to be brought into court, a young lady, whose name Bittakis does not know, who was interviewing the inmates going into court, asked Bittakis if he had an attorney and he said that he did not. There was some discussion concerning the status of his finances and it became apparent that because of his salary, Bittakis made too much money to be afforded a court appointed attorney. Bittakis asked how he went about getting an attorney and the female said that she was not allowed to recommend one or provide telephone numbers. She said that if nothing had "moved on the case" within two weeks she would get back to him. Bittakis protested that two weeks was a long time to spend in jail without an attorney, and she said she would check back again in a week and a half. Bittakis never heard from the young lady again. She said that there were usually attorneys in court and that more likely than not one would approach him and asked [sic] him if he need [sic] representation. That did not happen. Bittakis was herded into the courtroom along with a number of other inmates, most of who had apparently been arrested for misdemeanors. Bittakis sat there while the misdemeanor cases were adjudicated. When those cases had been heard, the judge mumbled something to the effect, "Mark Bittakis, you have been charged with a felony for possession of a controlled substance, ≥ 200G > 400G," and that was that. This was the first time Bittakis had been told what charges had been filed against him. No pleading innocent or guilty, no discussion of bail reduction, nothing.. "Bittakis did not have the opportunity. to say anything, or even stand up or appear before the bench". [sic] Bittakis basically just sat there while the magistrate mumbled. As he recalls, an attorney who may have been an assistant district attorney was present but said nothing. Bittakis was then taken back to his cell.4
The white powdery substance was subsequently sent to the Texas Department of Public Safety laboratory, where it tested negative for the presence of a controlled substance. Upon learning of the test results, the DA's Office declined to prosecute Plaintiff. Although it is not clear from the Complaint exactly how many days Plaintiff spent in jail, Plaintiff states that `lilt was now the sixth day Bittakis had been in jail and he still had not been able to contact his family or an attorney.5 a The summary judgment evidence before the court suggests Bittakis was released on February 9, 2005.6
The gravamen of Plaintiffs Complaint, against Defendants, to the best of the Court's understanding, is that the DIMS program denied Plaintiff his right to be taken before a magistrate judge for a probable cause hearing. That is, the DIMS program improperly enabled Clausen to make a "judicial determination" and set Plaintiffs bond, although Clausen was not a magistrate. That said, it is not clear from Plaintiffs 66-page Amended Complaint which causes of action he is alleging against each Defendant. Therefore, the Court construes Plaintiffs action as proceeding against all Defendants on all potential causes of action Plaintiff even briefly mentions in his Amended Complaint.7
The Court now summarizes those causes of action. Plaintiff sues the City, County, Esparza, and the officers, in their individuval al and official capacities, under 42 U.S.C. § 1983. He seeks redress under that statute for the Defendants' alleged violations of Plaintiffs First, Fourth, Fifth, Sixth, and Fourteenth Amendment rights. To the extent Plaintiff seeks to hold Defendants liable under § 1985 and § 1986, the Court understands him to allege that, pursuant to DIMS, the City, County, Esparza, Assistant District Attorneys, and the El Paso Police Department conspired together in some way to obstruct justice by depriving Plaintiff of his constitutional rights. Plaintiff also seems to assert a claim under the Racketeer Influenced and Corrupt. Organizations Act, arguing Defendants have somehow engaged in the conduct of an enterprise through a pattern of...
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