Brown v. U.S. Postal Inspection Serv.

• Decision Date: 29 August 2016
• Docket Number: CIVIL ACTION NO. H-14-1756
• Citation: 206 F.Supp.3d 1234
• Parties: Kevin BROWN, Pro Se, Plaintiff, v. UNITED STATES POSTAL INSPECTION SERVICE, United States Postal Service, Harris County District Attorneys, Office of Devon Anderson, Harris County Sheriff's Office, Harris County Office of Court Management, and Harris County Tax Assessor-Collector Office of Mike Sullivan, Defendants.
• Court: U.S. District Court — Southern District of Texas

206 F.Supp.3d 1234

Kevin BROWN, Pro Se, Plaintiff,

v.UNITED STATES POSTAL INSPECTION SERVICE, United States Postal Service, Harris County District Attorneys, Office of Devon Anderson, Harris County Sheriff's Office, Harris County Office of Court Management, and Harris County Tax Assessor-Collector Office of Mike Sullivan, Defendants.

CIVIL ACTION NO. H-14-1756

United States District Court, S.D. Texas, Houston Division.

Signed August 29, 2016

Kevin Brown, Houston, TX, pro se.

F. Clinton Gambill, II, Houston, TX, for Defendants.

OPINION AND ORDER GRANTING SUMMARY JUDGMENT

MELINDA HARMON, UNITED STATES DISTRICT JUDGE

Pending before the Court in the above referenced cause, seeking damages and punitive damages for violations of the First, Fourth, Fifth and Fourteenth Amendments of the federal Constitution and 42 U.S.C. § 1983, "Title VI" of the Civil Rights Act of 1964,¹ and the "OJ Program Statute,"² is a motion for summary judgment (instrument # 33) from Harris County Defendants Harris County District Attorneys, Office of Devon Anderson, Harris County Sheriff's Office, Harris County Office of Court Management, and Harris County Tax Assessor-Collector Office of Mike Sullivan (collectively, "Harris County Defendants"). Although the motion was filed on September 23, 2015, pro se Plaintiff Kevin Brown ("Brown"), proceeding in forma pauperis , has not filed a response.³ Nor has he directed any discovery to Harris County Defendants according to them.

Standard of Review

Summary judgment under Federal Rule of Civil Procedure 56(c) is appropriate when, viewing the evidence in the light most favorable to the nonmovant, the court determines that "the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." A dispute of material fact is "genuine" if the evidence would allow a reasonable jury to find in favor of the nonmovant. Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). "Only facts that might affect the outcome of the suit under the governing law will preclude the entry of summary judgment." Id.

Where the nonmovant bears the burden of proof at trial, the movant must offer evidence that undermines the nonmovant's claim or point out the absence of evidence supporting essential elements of the nonmovant's claim; the movant may, but does not have to, negate the elements of the nonmovant's case to prevail on summary judgment." Celotex Corp. v. Catrett , 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986) ; Lujan v. National Wildlife Federation , 497 U.S. 871, 885, 110 S.Ct. 3177, 111 L.Ed.2d 695 (1990) ; Edwards v. Your Credit, Inc. , 148 F.3d 427, 431 (5th Cir.1998). "A complete failure of proof concerning an essential element of the nonmoving party's case necessarily renders all other facts immaterial." Celotex , 477 U.S. at 323, 106 S.Ct. 2548.

If the movant meets its burden and points out an absence of evidence to prove an essential element of the nonmovant's case on which the nonmovant bears the burden of proof at trial, the nonmovant must then present competent summary judgment evidence to support the essential elements of its claim and to demonstrate that there is a genuine issue of material fact for trial. National Ass'n of Gov't Employees v. City Pub. Serv. Board , 40 F.3d 698, 712 (5th Cir.1994). "[A] complete failure of proof concerning an essential element of the nonmoving party's case renders all other facts immaterial." Celotex , 477 U.S. at 323, 106 S.Ct. 2548. The nonmovant may not rely merely on allegations, denials in a pleading or unsubstantiated assertions that a fact issue exists, but must set forth specific facts showing the existence of a genuine issue of material fact concerning every element of its cause(s) of action. Morris v. Covan World Wide Moving, Inc. , 144 F.3d 377, 380 (5th Cir.1998).

Conclusory allegations unsupported by evidence will not preclude summary judgment. National Ass'n of Gov't Employees v. City Pub. Serv. Board , 40 F.3d at 713 ; Eason v. Thaler , 73 F.3d 1322, 1325 (5th Cir.1996). " ‘[T]he mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment ....’ " State Farm Life Ins. Co. v. Gutterman , 896 F.2d 116, 118 (5th Cir.1990), quoting Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 247–48, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). "Nor is the ‘mere scintilla of evidence’ sufficient; ‘there must be evidence on which the jury could reasonably find for the plaintiff.’ " Id. quoting Liberty Lobby , 477 U.S. at 252, 106 S.Ct. 2505. The Fifth Circuit requires the nonmovant to submit " ‘significant probative evidence.’ " Id.quoting In re Municipal Bond Reporting Antitrust Litig. , 672 F.2d 436, 440 (5th Cir.1982), and citing Fischbach & Moore, Inc. v. Cajun Electric Power Co–Op. , 799 F.2d 194, 197 (5th Cir.1986). "If the evidence is merely colorable, or is not significantly probative, summary judgment may be granted." Thomas v. Barton Lodge II, Ltd. , 174 F.3d 636, 644 (5th Cir.1999), citing Celotex , 477 U.S. at 322, 106 S.Ct. 2548, and Liberty Lobby , 477 U.S. at 249–50, 106 S.Ct. 2505.

Allegations in a plaintiff's complaint are not evidence. Wallace v. Texas Tech Univ. , 80 F.3d 1042, 1047 (5th Cir.1996) ("[P]leadings are not summary judgment evidence."); Johnston v. City of Houston, Tex., 14 F.3d 1056, 1060 (5th Cir.1994) (for the party opposing the motion for summary judgment, "only evidence—not argument, not facts in the complaint—will satisfy' the burden."), citing Solo Serve Corp. v. Westown e Assoc. , 929 F.2d 160, 164 (5th Cir.1991). The nonmovant must "go beyond the pleadings and by [his] own affidavits, or by depositions, answers to interrogatories and admissions on file, designate specific facts showing that there is a genuine issue of material fact for trial." Giles v. General Elec. Co. , 245 F.3d 474, 493 (5th Cir.2001), citing Celotex , 477 U.S. at 324, 106 S.Ct. 2548.

The court must consider all evidence and draw all inferences from the factual record in the light most favorable to the nonmovant. Matsushita Elec. Indus. Co. v. Zenith Radio , 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986) ; National Ass'n of Gov't Employees v. City Pub. Serv. Board , 40 F.3d at 712–13. The Court may not make credibility determinations. Deville v. Marcantel , 567 F.3d 156, 164 (5th Cir.2009), citing Turner v. Baylor Richardson Medical Center , 476 F.3d 337, 343 (5th Cir.2007).

The Court has no obligation to "sift through the record in search of evidence" to support the nonmovant's opposition to the motion for summary judgment. Forsyth v. Barr , 19 F.3d 1527, 1533 (5th Cir.1994). Rather the nonmovant must identify evidence in the record and demonstrate how it supports his claim. Ragas v. Tenn. Gas Pipeline Co. , 136 F.3d 455, 458 (5th Cir.1998).

It is well established in the Fifth Circuit that "[a] federal court may not grant a ‘default’ summary judgment where no response has been filed."

Bradley v. Chevron U.S.A., Inc. , No. Civ. A. 204CV092J, 2004 WL 2847463, *1 (N.D.Tex. Dec. 10, 2004), citing Eversley v. MBank of Dallas , 843 F.2d 172, 174 (5th Cir.1988) ; Hibernia Nat. Bank v. Administracion Cent. Sociedad Anonima , 776 F.2d 1277, 1279 (5th Cir.1985). Nevertheless, if no response to the motion for summary judgment has been filed, the court may find as undisputed the statement of facts in the motion for summary judgment. Id. at *1 and n. 2, citing id. ; see also Thompson v. Eason , 258 F.Supp.2d 508, 515 (N.D.Tex.2003) (where no opposition is filed, the nonmovant's unsworn pleadings are not competent summary judgment evidence and movant's evidence may be accepted as undisputed). See also Unum Life Ins. Co. of America v. Long, 227 F.Supp.2d 609 (N.D.Tex.2002) ("Although the court may not enter a ‘default’ summary judgment, it may accept evidence submitted by [movant] as undisputed."); Bookman v. Shubzda , 945 F.Supp. 999, 1002 (N.D.Tex.1996) ("A summary judgment nonmovant who does not respond to the motion is relegated to [his] unsworn pleadings, which do not constitute summary judgment evidence.").

For a no-evidence motion for summary judgment, Rule 56(c)"mandates the entry of summary judgment, after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex , 477 U.S. at 322, 106 S.Ct. 2548. If the nonmovant fails, "there can be no ‘genuine issue as to any material fact,’ since a complete failure of proof concerning an essential element of the nonmoving party's case necessarily renders all other facts immaterial," and summary judgment as a matter of law must be granted. Id. at 322–23, 106 S.Ct. 2548.

Key Allegations of Brown's Complaint (# 1)

Brown, who rents a post office box that he claims gives him "effective consent to be on the [post office] property," alleges that since June 28, 2012 he was illegally arrested two times at a post office in Harris County, that his vehicle was seized and sold, and that a number of wrongful actions were taken against him for several months. Specifically he alleges that around 5 p.m. on June 28, 2012, when he was wearing gospel singer Ann Nesby's "Put It On Paper" t-shirt as he went to retrieve his mail from his post office box, his Ford Mustang GT suffered a flat tire in the post office parking lot because of exposed rebars erected with rusty iron by Supervisor Denise J. Raipe ("Raipe"). After Brown reported the problem to USPS, to avoid signing a tow-wrecker's ticket slip Raipe told Postal Police to falsely arrest Brown. Brown's Ford Mustang was seized, along with his cell phone. Postal Policeman Ibarra ("Ibarra"), unit # P2163, arrived around 6 p.m. to...