Hale v. Fish

• Decision Date: 30 April 1990
• Docket Number: 89-4090,Nos. 88-4816,s. 88-4816
• Citation: 899 F.2d 390
• Parties: Billy HALE, Plaintiff-Appellee-Appellant-Cross-Appellant, v. Randal M. FISH, et al., Defendants, Major J.W. Jones, Caddo Parish Sheriff's Office and James E. Magee, FBI Agent, Defendants-Appellants Cross-Appellees, and Don Hathaway, Sheriff, Caddo Parish, Jim Byrd, Captain, Caddo Parish Sheriff's Office and Myron Fuller, FBI Agent, Defendants-Appellees. John S. STEPHENS, Plaintiff-Appellee-Cross-Appellant-Appellant, v. Randal M. FISH, et al., Defendants, Major J.W. Jones, Caddo Parish Sheriff's Office and James E. Magee, FBI Agent, Defendants-Appellants Cross-Appellees, and Don Hathaway, Sheriff, Caddo Parish, Jim Byrd, Captain, Caddo Parish Sheriff's Office and Myron Fuller, FBI Agent, Defendants-Appellees. Billy HALE, Plaintiff-Appellee, v. Randal M. FISH, et al., Defendants, Jim McGee, F.B.I, Agent J.W. Jones, Etc., Defendants-Appellants.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 390

899 F.2d 390

Billy HALE, Plaintiff-Appellee-Appellant-Cross-Appellant, v. Randal M. FISH, et al., Defendants,

Major J.W. Jones, Caddo Parish Sheriff's Office and James E.

Magee, FBI Agent, Defendants-Appellants Cross-Appellees,

and

Don Hathaway, Sheriff, Caddo Parish, Jim Byrd, Captain,

Caddo Parish Sheriff's Office and Myron Fuller,

FBI Agent, Defendants-Appellees.

John S. STEPHENS, Plaintiff-Appellee-Cross-Appellant-Appellant, v. Randal M. FISH, et al., Defendants,

Major J.W. Jones, Caddo Parish Sheriff's Office and James E.

Magee, FBI Agent, Defendants-Appellants Cross-Appellees,

and

Don Hathaway, Sheriff, Caddo Parish, Jim Byrd, Captain,

Caddo Parish Sheriff's Office and Myron Fuller,

FBI Agent, Defendants-Appellees.

Billy HALE, Plaintiff-Appellee, v. Randal M. FISH, et al., Defendants, Jim McGee, F.B.I, Agent J.W. Jones, Etc., Defendants-Appellants.

Nos. 88-4816, 89-4090.

United States Court of Appeals Fifth Circuit.

April 30, 1990.

Scott R. McIntosh, Barbara L. Herwig, Appellate Staff, Civil Div., Dept. of Justice, Washington, D.C., John A. Broadwell, Asst. U.S. Atty., Joseph S. Cage, Jr., U.S. Atty., Shreveport, La., for defendants-appellants cross-appellees.

John Milkovich, Shreveport, La., for plaintiff-appellee-appellant-cross-appellant.

Joseph W. Rausch, Stassi, Rausch & Giordano, John R. Flowers, Jr., Metairie, La., for J.W. Jones.

John S. Stephens, Shreveport, La., pro se.

Appeals from the United States District Court for the Western District of Louisiana.

Before GEE, GARZA, and DAVIS, Circuit Judges.

GARZA, Circuit Judge:

Finding the district court correctly analyzed the Section 1983 liability of Major Jones and Special Agent Magee, the extent of the qualified immunity umbrella, and the liability of Agent Fuller and Captain Boyd, the district court's liability phase of the case is AFFIRMED. Finding the adequacy of the compensatory damages and the decision of whether or not to award punitive damages and/or prejudgment interest within the discretion of the district court, we find no abuse of discretion. The award of attorney's fees to Mr. Hale, which his mother paid, is reinstated and the Judgment MODIFIED to so reflect.

I. The Facts.

This case presents a tangled set of facts commencing in the early part of 1985 and culminating with plaintiffs' arrest on July 11, 1985. Many facts deemed pertinent by the court involve individuals who were not parties to this action. Reference to these individuals is made solely for the purpose of establishing all facts necessary to properly address the legal issues presented.

In January, Dr. Eugene Harber advised his close friend, FBI Special Agent Jim Smith, that Billy Hale, a plaintiff herein might have information regarding alleged improprieties in the Bossier Parish District Attorney's Office. Smith furnished Dr. Harber with a business card to be given to Hale and instructed Dr. Harber to have Hale give him a call. Dr. Harber complied. He also gave Smith a number where he could reach Hale.

Shortly thereafter, Smith contacted Hale, whereupon the two agreed to meet at the Riverboat Motel in Shreveport. Smith invited FBI Special Agent Magee, to accompany him to the meeting with Hale. Magee declined the invitation due to an illness in his family. Smith met with Hale at the motel on February 2. Also present was Deann McGlocklin, Gary Shell's girlfriend.

McGlocklin stated that 52 reel-to-reel tapes existed which provided evidence of alleged improprieties in the Bossier Parish District Attorney's Office. She further stated that the tapes had been made by Gary Shell and Frank Parks, and that the assistance of Gary Shell would be necessary to locate the tapes. At that time, the whereabouts of Gary Shell were unknown.

Some weeks later, after a fruitless search, Hale learned that Shell was incarcerated in the Bossier Parish Jail. Upon learning this fact, Hale contacted Vol Dooley, the sheriff of Bossier Parish, and requested permission to interview Shell. With Sheriff Dooley's permission, Hale interviewed Shell on April 1. Subsequent thereto, Hale requested Sheriff Dooley's assistance in trying to have Shell's bond reduced so that Shell could be bonded out of jail to locate the tapes. Judge Cecil Campbell had initially set bail for Shell at $26,000. Sheriff Dooley contacted Judge Campbell and explained to Campbell the situation regarding the alleged tapes and the necessity of Shell's assistance. Judge Campbell advised Dooley that he would take the matter under advisement, but would need to speak with Agent Smith. Sheriff Dooley relayed this message to Smith, who agreed to contact Judge Campbell.

Before Smith had an opportunity to contact Judge Campbell, Hale visited the judge. Hale advised the judge that he was working at the direction of the FBI in an effort to obtain the tapes. Merle Kimmerly, a former client of Campbell, had already informed the judge that tape recordings existed which would confirm allegations of criminal conduct involving the Bossier Parish District Attorney. Kimmerly also told the judge that Gary Shell had obtained copies of the tapes. Judge Campbell was skeptical of the information with which he had been provided by Hale and Kimmerly.

This skepticism, however, was laid to rest as a result of Judge Campbell's subsequent conversation with Smith. Smith confirmed that the FBI was conducting an investigation into alleged wrongdoings by the Bossier Parish District Attorney. When Campbell expressed his doubt over the existence of the tapes, Smith replied that the FBI had other intelligence information which supported the conclusion that the tapes did, in fact, exist. Smith assured the judge that Hale was acting at the direction of the FBI. Smith requested Campbell not to mention that the FBI was investigating the matter since, under FBI internal rules, a public official must be notified within 30 days after being targeted for an investigation. Because of Smith's representations, Judge Campbell decided to reduce Shell's bond from $26,000 to $5,000. Campbell then notified Sheriff Dooley of the bond reduction.

On April 16, Sheriff Dooley advised his chief jailer, Captain Tommy McWilliams, that two people would be coming to bond Gary Shell out of jail. Late that afternoon, Hale and William Brewer posted Shell's bond in the form of a $5,000 money order. It is undisputed that Shell freely and, indeed quite happily left the jail with Hale and Brewer. The three exited the jail through a side entrance which led to an enclosed yard where Hale and Brewer had been permitted to drive their van. Once in the van, Shell was handcuffed by Brewer to a ring on the floor of the van. When Shell asked why he was being handcuffed, the reply was, "[W]e're just doing what we were told to do."

Shell was then driven to Hale's residence on the Shirley Francis Road in Greenwood Louisiana. En route to Hale's residence, the van was followed by a white Cadillac driven by Clifton Guevara. It was at the home in Greenwood where Shell claimed he was threatened and intimidated with regard to the location of the alleged tapes. Present at the Hale residence, at various times, were Shell, McGlocklin, Hale, Brewer, Guevara, John S. Stephens, Kenneth Dunn, Connie Hale, Herman Meeks, and James and Dottie Collier.

The Colliers owned and operated Jaws Protection Agency. The primary activity of this business was to provide guard dogs. Hale employed the Colliers' services, whereupon a guard dog was placed in the front and rear of Hale's residence on April 16. The dogs remained at the residence until Shell was returned on April 18.

Shell indicated that the tapes were in the trunk of his car at a home in Weatherford, Texas. On April 17, Shell was driven to Weatherford for the purpose of securing the tapes. Accompanying Shell on the trip were Hale, Brewer, the Colliers, Guevara, Dunn, and McGlocklin. While in Weatherford, Shell picked up some personal belongings but did not locate any tapes. The group returned to Greenwood that same day.

On April 18, at approximately 6:00 p.m., Shell was returned to the Bossier Parish Jail by Hale and Brewer. When Judge Campbell learned that Shell had been returned to the jail, the bond was reinstated to its original amount. Shell never made a complaint of being kidnapped either to Sheriff Dooley or the chief jailer, Captain McWilliams.

Hale informed Smith that Shell had not been able to locate the tapes. As he had since February, Hale contacted and was contacted by Smith several times a week. Supervisory Resident Agent Myron Fuller (hereinafter "SRA Fuller") was aware of these contacts and instructed Smith to open an inquiry file on Hale if he planned to continue communicating with him. An inquiry file is the first step in the FBI procedure for employing an individual as an informant. After repeated requests by SRA Fuller, Smith finally opened the inquiry file on May 8.

In early to mid-June, Randal Fish began contacting various officials in Bossier and Caddo Parishes to voice Shell's complaint that he had been kidnapped on April 16. It is undisputed that these allegations, if true, implicated Smith, Sheriff Dooley, Judge Campbell and, possibly, Bruce Bolin, since Hale had been working for Bolin. On June 26, Bossier Parish District Attorney Henry Brown met with Milton Almond, chief deputy for the Caddo Parish Sheriff's department, and Special Agent Magee at the Regency Hotel in Shreveport to discuss the information that Brown had received regarding the alleged kidnapping and the FBI's connection. After this meeting, Chief Deputy Almond notified Sheriff Don Hathaway, Caddo Parish District Attorney Paul Carmouche and Major J.W. Jones, Caddo Parish Sheriff's Department, of Shell's allegations.

On June 27, a meeting was held in the conference room of the Caddo Parish Sheriff's Department, with Sheriff Hathaway, Chief Deputy Almond, Major Jones, Henry Brown, Paul Carmouche and Edwin Brewer, the attorney for Sheriff Hathaway. It was...