Harris v. Polk Cnty.
| Decision Date | 31 March 2015 |
| Docket Number | Case No. 9:15-cv-14-MHS |
| Court | U.S. District Court — Eastern District of Texas |
| Parties | Florida Harris, Sylvester Harris, Jr., Fred M. Davis, Lloyd Fuqua, Lesley M. Thomas-Fuqua, Sylvia M. Parker, Jerry Reeves, Kent W.Wellin, Jr., and Earl Wright v. Polk County, Texas, Kenneth Hammack, Michael D. Nettles, Anthony R. Lowrie, Howard W. Smith, Mark L. Jones, Christopher P. Lima, John Doe 1, and, John Doe 2 |
Before the Court is Defendants' motion for summary judgment (Doc. No. 37). The Court previously issued a preliminary order (Doc. No. 114), which GRANTED IN PART summary judgment in favor of Defendants Polk County, Texas, Kenneth Hammack, Michael D. Nettles, Howard W. Smith, Mark L. Jones, Christopher P. Lima, John Doe 1, and John Doe 2. The following memorandum opinion sets forth the Court's reasoning.
A separate opinion will address summary judgment as to Defendant Anthony R. Lowrie.
The relevant facts of this case, viewed in the light most favorable to Plaintiffs as the non-moving party, are as follows.1
On May 27, 2011, Defendant officers of the Polk County Sheriff's Office conducted a traffic stop, in which George Earl Owens was a passenger. Owens admitted that he had some marijuana in his possession. Owens stated that he received the marijuana from Plaintiff Sylvester Harris earlier that night just before leaving Florida's Kitchen in Livingston, Texas (the "restaurant"), which is owned and operated by Plaintiffs Florida and Sylvester Harris.
Defendant Lieutenant Anthony "Andy" Lowrie2 contacted Polk County Assistant District Attorney Joe Martin and recounted Owens's tip. Lowrie also informed Martin that he bought marijuana from Owens and arrested him in 1999 or 2000, and described Owens as "slow in the head" (Doc. No. 99 at 14). But Lowrie said he found Owens to have been credible based on his previous experience. Martin instructed Lowrie to apply for a search warrant.
Owens provided a written statement to Lowrie under penalty of perjury ("Owens Affidavit," Doc. No. 37-3). In pertinent part, Owens stated:
I have known Sylvester Harris for 20 to 25 years and I have for worked for him off and on for three years. I wash cars and clean shop for him at his cab business. I pick up trash at Florida's kitchen in the parking lot. On today's date at approximately 9:30 or 10:00 Pm I help carry vegetables into the refrigerator for Sylvester. I help carry tomatoes, cucumbers and squash into the refrigerator for Sylvester. While in the refrigerator today I saw three bundles of marijuana wrapped in clear plastic wrap. The bundles are located on the left hand side under the vegetables. The refrigerator is a large walk in cooler and it also contained prepped meat for cooking. I know what marijuana is and I know what marijuana looks like because I have been smoking marijuana on and off for about fifteen years. I have been arrested for delivery of marijuana in the past. I have known Sylvester has been selling marijuana for about twenty years or longer. On today's date at approximately 10:50 pm I was a passenger in my wives vehicle when we were stopped by Polk County Sheriff's Deputies. During the stop I had marijuana in my possession. I got the marijuana from Sylvester Harris tonight prior to leaving Florida's. He had the marijuana in a little metal can he keeps on him every day.
(Doc. No. 37-3 at 2, errors original). Owens signed his affidavit before Lowrie on May 27, 2011, and it was further witnessed by Polk County Precinct 4 Constable Dana Piper (nonparty) and Defendant Deputy Christopher Lima. (Doc. No. 37-3 at 3).
Based on the Owens Affidavit, Defendant Lowrie prepared the "AFFIDAVIT FOR SEARCH WARRANT" ("Warrant Affidavit," Doc. No. 37-2 at 3). The Warrant Affidavit states that the restaurant is controlled by Sylvester Harris and Florida Harris. The Warrant Affidavit also states that Lowrie has probable cause based on "Exhibit A" attached and incorporated by reference ("Probable Cause Affidavit," Doc. No. 37-2 at 4). Lowrie signed the Warrant Affidavit before Judge Robert H. Trapp (then-judge of 411th District Court) on May 28, 2011. In the Probable Cause Affidavit, Lowrie states that approximately at 10:50 p.m. on May 27, 2011, officers of the Polk County Sheriff's Office conducted a traffic stop of a cooperating individual ("CI")—i.e., Owens. The CI advised that he received marijuana from Plaintiff Sylvester Harris. The CI advised that he saw the three bundles of marijuana when he helped Sylvester Harris carry vegetables into the refrigerator at the restaurant. Thus, Lowrie requested that the search warrant be issued for "Florida's Kitchen, out buildings, property and vehicles at the business at [that] time" (Doc. No. 37-2 at 4). Lowrie signed the Probable Cause Affidavit before Judge Trapp on May 28, 2011.
On May 28, 2011, at 12:17 a.m., Judge Trapp signed a search warrant, which states that Affiant Lowrie provided "the Affidavit attached hereto did hereto this day subscribe and swear to said Affidavit before me (which said affidavit is by this reference incorporated herein for all purposes)" (Doc. No. 37-2 at 2). Judge Trapp found probable cause based on "the verified facts stated by Affiant in the Affidavit" (Doc. No. 37-2 at 2).
Several Defendant officers—Deputy Michael Nettles, Lieutenant Lowrie, Sergeant Howard Smith, Lieutenant Mark Jones, and Deputy Christopher Lima (collectively, "Officer Defendants")—executed the search warrant on the restaurant at or around 10:00 p.m. May 28, 2011. There is no allegation that Sheriff Kenneth Hammack was ever present at the restaurant. The search lasted several hours, during which Plaintiffs Fred Davis, Lloyd Fuqua, Lesley Thomas-Fuqua, Sylvia Parker, Jerry Reeves, Kent Wellin, Jr., and Earl Wright ("Employee Plaintiffs") were detained and searched. Plaintiffs' vehicles were also searched. Lowrie states in the search warrant return and inventory that "11 baggies containing a small amount of marijuana" were seized (Doc. No. 37-4 at 2). Plaintiff Sylvester Harris also surrendered a .22 caliber pistol, and was arrested on a charge of felon in possession of a hand gun (Doc. No. 1 at 18).3 All other Plaintiffs were released upon completion of the search.
In Counts I and II, Plaintiffs assert their claims under 42 U.S.C. § 1983. In Count I, Plaintiffs allege that Officer Defendants violated Plaintiffs' rights under the Fourth Amendmentby conducting an illegal and unreasonable search and seizure of Plaintiffs' persons and property and by unlawfully arresting detaining, and imprisoning Plaintiffs (Doc. No. 1 at 34). Defendants counter that they are entitled to qualified immunity because they acted reasonably pursuant to a validly issued warrant, and, therefore, did not violate any of Plaintiffs' constitutional rights.
In Count II, Plaintiffs assert that Defendant Sheriff Hammack, " intentionally, knowingly, and/or recklessly failed to adequately instruct, train, supervise, discipline, and control" the Officer Defendants (Doc. No. 1 at 37). Hammack argues that—even if there were a constitutional violation—Plaintiffs have failed to provide any proof of a repeated pattern of misconduct, specifically and personally known and tolerated by Hammack,.
Finally, in Counts III through VI, Plaintiffs assert that Officer Defendants committed assault, battery, false imprisonment, and invasion of privacy under Texas law (Doc. No. 1 at 41-48). Defendants counter that: (1) Plaintiffs failed to state a claim for the tort claims; (2) these claims are barred under Texas law; and (3) they are entitled to official immunity.
Rule 56(a) requires the issuance of summary judgment "if there is no genuine issue as to any material fact," and the movant is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a). The movant bears the initial burden of informing the court of the basis for its motion and identifying those portions of the record it believes demonstrate the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 447 U.S. 317, 323 (1986). Only when the moving party has discharged this initial burden does the burden shift to the non-moving party to demonstrate that there is a genuine dispute of material fact. Id. at 322. A dispute is "genuine" if the evidence is such that a reasonable jury could return a verdict for the nonmoving party. See Anderson v.Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); Cooper Tire & Rubber Co. v. Farese, 423 F.3d 446, 454 (5th Cir. 2005). A dispute is "material" if its resolution could affect the outcome of the action. Anderson, 477 U.S. at 248. The Court must view the evidence and draw inferences in the light most favorable to the nonmoving party. Id. at 255; Tolan v. Cotton, 134 S. Ct. 1861, 1862 (2014) (per curiam); Richardson v. Monitronics Int'l, Inc., 434 F.3d 327, 332 (5th Cir. 2005).
State actors sued in their individual capacity for money damages under 42 U.S.C. § 1983 are entitled to qualified immunity "unless a plaintiff pleads facts showing (1) that the official violated a statutory or constitutional right, and (2) that the right was 'clearly established' at the time of the challenged conduct." Ashcroft v. al-Kidd, 563 U.S. - - -, 131 S. Ct. 2074, 2080 (2011) (citing Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)). The Court has "discretion in deciding which of the two prongs of the qualified immunity analysis should be addressed first." Pearson v. Callahan, 555 U.S. 223, 236 (2009). Once a defendant invokes qualified immunity, "the burden shifts...
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