Freeman v. County of Bexar

• Decision Date: 29 May 1998
• Docket Number: No. 95-50188,95-50188
• Citation: 142 F.3d 848
• Parties: Lillian FREEMAN, Plaintiff-Appellant, v. COUNTY OF BEXAR, et al., Defendants, John Jennings, Individually and in his official capacity; George Saidler, Individually and in his official capacity; Defendants-Appellees. Lillian FREEMAN, Plaintiff-Appellant, v. CITY OF SAN ANTONIO, et al., Defendants, John Jennings, Individually and in his official capacity; George Saidler, Individually and in his official capacity; Defendants-Appellees.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 848

142 F.3d 848

Lillian FREEMAN, Plaintiff-Appellant, v. COUNTY OF BEXAR, et al., Defendants, John Jennings, Individually and in his official capacity;

George Saidler, Individually and in his official

capacity; Defendants-Appellees.

Lillian FREEMAN, Plaintiff-Appellant, v. CITY OF SAN ANTONIO, et al., Defendants, John Jennings, Individually and in his official capacity;

George Saidler, Individually and in his official

capacity; Defendants-Appellees.

No. 95-50188.

United States Court of Appeals Fifth Circuit.

May 29, 1998.

Sabrina C. Arellano, San Antonio, TX, for Plaintiff-Appellant.

Lillian Freeman, San Antonio, TX, pro se.

Nathan Mark Ralls, Ables, Locker, Ralls & Cowen, San Antonio, TX, for John Jennings.

Charles Straith Frigerio, Hector X. Saenz, San Antonio, TX, for George Saidler.

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

Before JONES, SMITH and STEWART, Circuit Judges.

EDITH H. JONES, Circuit Judge:

Appellant Lillian Freeman appeals the district court's grant of summary judgment in favor of the appellees in her 42 U.S.C. § 1983 civil action. For the foregoing reasons, we reverse and remand to the district court.

FACTUAL BACKGROUND

Appellant Freeman was arrested twice by the San Antonio Police Department for armed robberies which occurred June 4, 1991 and July 10, 1991 at two different San Antonio Credit Union ("SACU") branches. The police first arrested Freeman in July, 1991 after receiving an anonymous tip from one of her co-workers who claimed that the photo displayed on a local "Crime Stoppers" program resembled Freeman. Appellees Detective George Saidler and Officer John Jennings investigated the robberies on behalf of the San Antonio Police Department. Because both SACUs were national banks, agents from the Federal Bureau of Investigation were also investigating the crimes.

The FBI investigation revealed that Freeman was not involved in the robberies. In fact, two of the bank tellers who were robbed on June 4 could not identify Freeman in a photo array conducted by the FBI. However, in spite of having knowledge of this information from the FBI, Saidler and Jennings continued to investigate Freeman. Saidler obtained what he asserts was an identification of Freeman from an eyewitness to the first robbery who had earlier been unable to identify her for the FBI. In his deposition for this case, however, Saidler admitted that witness Joy King did not make a positive identification. Detective Saidler also conducted a photo array before a group of people at Freeman's former place of employment. When comparing the bank surveillance camera photo with a photo of Freeman in her personnel file, employees expressed doubt as to whether the bank's photo was Freeman. Nevertheless, Detective Saidler wrote statements for the witnesses to sign indicating that they positively identified Freeman as the robber. None of the co-employees corrected or attempted to correct the statements before signing them.

Officer Jennings met with two tellers from the second SACU that had been robbed and showed them a surveillance photo taken in the first robbery. Jennings informed the witnesses that the person in the surveillance photo was Lillian Freeman. One of the witnesses identified the person in the surveillance photo as the person who had robbed her. Jennings took this to be a positive identification of Freeman.

Jennings and Saidler arrested Freeman a second time on October 10, 1991 in spite of FBI warnings that there was insufficient probable cause to arrest her for the two robberies. Subsequent to her arrest, a third robbery occurred in late November. Another woman, Carolyn Yvonne Butler, was federally indicted for all three robberies and was convicted for the crimes in April, 1992.

In spite of Butler's arrest and conviction, Freeman was prosecuted in the state system until several weeks after Butler's conviction. Eventually, the Bexar County District Attorney filed a motion to dismiss charges against Freeman due to insufficient evidence.

Freeman filed suit in state court against Bexar County, the City of San Antonio, and a host of municipal employees in their individual and official capacities. The gist of Freeman's many claims was that she had been arrested without probable cause on two occasions for the two robberies. Freeman also alleged that the defendants had acted maliciously, willfully, and with specific intent to In an exhaustive memorandum, the magistrate judge recommended that the defendants' several motions for judgment as a matter of law be granted. These included motions for judgment as a matter of law from Saidler and Jennings predicated on qualified immunity. In making her ruling, the magistrate judge held inadmissible the affidavit of Freeman's expert, Ray Hildebrand, a former San Antonio police officer, because it consisted almost entirely of legal conclusions unsupported by any facts and did not state which policies and procedures the officers violated.

deprive her of her federal constitutional and state law rights. The case was removed to federal court, and pretrial proceedings were assigned to a magistrate judge.

Freeman, in response, submitted motions to compel discovery and for submission of additional evidence and timely objected to the magistrate judge's recommendation. She also filed a supplemental affidavit of her expert Hildebrand. The defendants opposed these efforts.

On February 16, 1995, the district court filed a memorandum opinion accepting the magistrate judge's recommendation. With respect to the supplemental affidavit of Hildebrand, the district court stated:

Plaintiff attempts to support much of the rest of her objections with a supplemental affidavit of her expert, Ray Hildebrand. The Magistrate Judge concluded that his affidavit was not proper summary judgment proof because it consisted almost exclusively of legal conclusions unsupported by any facts. Mr. Hildebrand has fleshed out his supplemental affidavit considerably, analyzing each step in the investigative process taken by each officer and concluding how, in his opinion, that conduct violated City policies or fell short of proper investigative techniques. None of this, however, was presented to the Magistrate Judge. Although 28 U.S.C. § 631[sic] provides for de novo review by the district court if timely objections are filed, it does not allow the parties to raise at the district court stage new evidence, argument, and issues that were not presented to the Magistrate Judge, absent compelling reasons. Cupit v. Whitley, 28 F.3d 532, 535 n. 5 (5th Cir.1994). The affidavit will not be considered.

Freeman timely filed her notice of appeal. Pursuant to a motion by Freeman, the appeal was dismissed as to all parties except Jennings and Saidler.

DISCUSSION

We review a district court's grant of judgment as a matter of law de novo. See Topalian v. Ehrman, 954 F.2d 1125, 1131 (5th Cir.), cert. denied, 506 U.S. 825, 113 S.Ct. 82, 121 L.Ed.2d 46 (1992). Judgment as a matter of law is appropriate "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, 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." Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 2552, 91 L.Ed.2d 265 (1986).

Freeman asserts that, in refusing to consider the supplemental affidavit of her expert, Hildebrand, the district court deprived her of a ruling by an Article III judge on her case and, alternatively, abused his discretion. We do not reach the constitutional question as it is posed in this case because the district court mistook his authority to consider additional evidence. Freeman correctly cites 28 U.S.C. § 636(b)(1) to support her argument that the district court could have accepted the supplemental affidavit:

A judge of the court shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made. A judge of the court may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate. The judge may also receive further evidence or recommit the matter to the magistrate with instructions.

28 U.S.C. § 636(b)(1).

Two portions of the statute are relevant here. First, the district court makes a de novo determination upon those aspects of the magistrate judge's report to which objection has been made. Second, the court "may receive further evidence or recommit the matter to the magistrate with instructions." These phrases are carefully drafted to maximize the district court's authority to review and reconsider the magistrate judge's decision on an objected-to finding or recommendation. See generally 12 CHARLES ALAN WRIGHT & ARTHUR R. MILLER, FEDERAL PRACTICE AND PROCEDURE § 3076.8 (Supp.1997).

FED. R. CIV. P. 72(b) implements and reflects the breadth of statutory discretion by providing:

(b) Dispositive Motions and Prisoner Petitions.

* * *

The district judge to whom the case is assigned shall make a de novo determination upon the record, or after additional evidence, of any portion of the magistrate judge's disposition to which specific written objection has been made in accordance with this rule. The district judge may accept, reject, or modify the recommended decision, receive further evidence, or recommit the matter to the magistrate judge with instructions.

Circuit courts differ on whether de novo review presupposes that,"for purposes of judicial economy and efficiency, the record compiled before the magistrate judge is ordinarily conclusive; or whether de novo review entails consideration of an issue as if it had not been previously decided." ¹ In the latter case, the Fourth Circuit permits parties who object to a magistrate judge's report to raise any new evidence or arguments they can muster before the district court....