Johnson v. Deep East Texas Regional Narcotics, 03-40394.

• Citation: 379 F.3d 293
• Decision Date: 27 July 2004
• Docket Number: No. 03-40394.,03-40394.
• Parties: Nadine JOHNSON, Plaintiff-Appellant, v. DEEP EAST TEXAS REGIONAL NARCOTICS TRAFFICKING TASK FORCE; et al., Defendants, Nacogdoches County; Kim Courtney, Task Force Member; Ramiro Mendiola, Nacogdoches County Sheriff Deputy, Defendants-Appellees.
• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)

379 F.3d 293

Nadine JOHNSON, Plaintiff-Appellant, v. DEEP EAST TEXAS REGIONAL NARCOTICS TRAFFICKING TASK FORCE; et al., Defendants Nacogdoches County; Kim Courtney, Task Force Member; Ramiro Mendiola, Nacogdoches County Sheriff Deputy, Defendants-Appellees.

No. 03-40394.

United States Court of Appeals, Fifth Circuit.

July 27, 2004.

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Curtis B. Stuckey, Stuckey, Garrigan & Castetter, Nacogdoches, TX, for Plaintiff-Appellant.

Christi Johnson Kennedy, Robert Scott Davis, Flowers Davis, Tyler, TX, for Defendants-Appellees.

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

Before GARWOOD, JOLLY and CLEMENT, Circuit Judges.

GARWOOD, Circuit Judge:

In this damage suit under 42 U.S.C. § 1983 arising out of the March 9, 2001 search of her home, plaintiff-appellant Nadine Johnson appeals the grant of summary judgment in favor of defendants-appellees Nacogdoches County and its deputy sheriffs Kim Courtney and Ramiro Mendiola. We affirm.

Facts and Proceedings Below

On March 9, 2001, the Houston Field Division of the Drug Enforcement Agency (DEA) coordinated a "round up" of drug-related, outstanding state and federal arrest warrants in Nacogdoches County, Texas (and possibly other counties). The agencies participating in this round up included the DEA, the ATF, the United States Marshal's Service, the Texas Department of Public Safety, the City of Nacogdoches Police Department, the Nacogdoches County Sheriff's Department, the Sabine County Sheriff's Office, and the Deep East Texas Narcotics Trafficking Task Force (the Task Force).¹

In preparation for the round up, defendant-appellee Ramiro Mendiola (Mendiola), a deputy sheriff with the Nacogdoches County Sheriff's Office on assignment to the Task Force, put together "bust out" packages for the persons to be arrested. Each package contained the warrant(or warrants) for that person, a blank consent to search form, the address of the person to be arrested which was taken from the offense report, and a photograph of that person, if available. After having prepared the packages, Mendiola turned them over to the DEA to be distributed at the round up meeting on the morning of March 9th.

The approximately eighty-seven officers and agents that were to participate in the round up met at 6:30 a.m. on the morning of March 9th, at a DEA command center site, and were then separated into eight teams and given assignments. Together, these teams were to execute a total of eighty-six state and federal warrants. Each team leader was given a bust out package on each suspect assigned to that team, and the leaders were told to refer to these packages for the information to conduct their assignments. The team leaders waited for instructions from the DEA command center to commence execution of the warrants. While defendant-appellee Kim Courtney (Courtney), a Nacogdoches County deputy sheriff on assignment to the Task Force, was assigned to one of these teams, Mendiola played no role in the execution of the warrants, nor was he a part of any team.

Team three, led by DEA Agent Fred Marshall (Marshall), was originally comprised of eight members, including Courtney. This team was assigned to execute twelve arrest warrants on a total of ten people, one of whom was Davin Wayne Howard (Howard). Howard had two outstanding state felony arrest warrants for the delivery of crack cocaine, each warrant being dated December 11, 2000. These two warrants were apparently based on grand jury felony indictments for crack cocaine sales on September 19, 2000 and October 26, 2000. The bust out package on Howard indicated that his address was 419 Otis Street, Nacogdoches. In preparing this and all other bust out packages, Mendiola referred to the suspect's offense report in the Nacogdoches County jail records. The offense reports on the October 26 and September 19, 2000 sales by Howard each showed his address as 419 Otis Street (the reports described the offenses as street buys on other streets). Howard had been booked in the County jail on July 10, 2000, and then listed his address as 419 Otis Street. This was apparently the source of the information concerning his address on the October 26 and September 19, 2000 offense reports. 419 Otis Street was the address that Mendiola included in preparing Howard's package.² However unknown to Mendiola, or any other of the individual defendants or any law enforcement officers, Howard had in fact not been living at the Otis Street address since August of 2000.³ Howard's mother, Mrs. Wade, had been leasing the house for some time until her eviction in August 2000. One of the Team three members, City of Nacogdoches Police Officer Cain, had seen Howard at the 419 Otis Street residence in March 2000. However, completely unknown to the Team three members, on March 9, 2001, plaintiff, sixty-seven year old Nadine Johnson was living there alone, as she had been since August 2000.

The team members themselves played no role in acquiring the information in the packages and had no information suggesting that it was not, or was unlikely to be, correct. At the briefing earlier that morning, there was no discussion of Howard's address. The packages were given to the team leader, Marshall, and he told the team members the addresses they were going to. Courtney had nothing to do with confirming whether Howard was then, or ever had been, at the Otis Street address, and as to decisions related to that she was simply following the instructions of Marshall. The team members were under the direction of DEA agent Marshall as the team leader and they were to follow his commands and the DEA procedures for executing the warrants. Marshall, based on the bust out package, believed that 419 Otis Street was where Howard resided, and so did the other team members.

Team three arrived at the Otis Street location about 9 a.m. in two separate cars. Upon arrival, five of the team members, including Courtney and team leader Marshall, went to the front door, while others went around the back and side of the house.⁴ Marshall knocked on the door and announced "police, arrest warrant," "police, come to the door," and "police, open up" repeatedly. Upon hearing some movement in the house but not receiving a response after approximately thirty seconds, Marshall ordered team member Cain, a City of Nacogdoches police officer, to breach the door. Cain did so. Courtney did not knock on the door, or participate in its breaching; nor did she say anything before the door was breached and the officers entered. As Marshall testified in his deposition, the decision to breach the door and enter the house was his alone, and all that the members of the team did at the Otis Street premises was pursuant to his directions. The team members then entered the house. While there is some dispute as to what exactly was said and precisely how long the officers waited before forcing entry, Johnson admitted that she saw the officers pull up in front of her house and get out of their cars, heard them coming up on the porch, and heard them "hollering police, open up." She testified that she was heading toward the door when it was breached.

Courtney was the last or next to last officer to enter the house. She was the only female on the team and was wearing a mask over her face to protect her identity, as she was an undercover agent with the Task Force, and did not want to be recognized for fear of destroying her undercover status. Once inside, the team members saw Johnson in the front room of the house. She was told by one or more unidentified team members to get down. When Courtney first saw Johnson she was starting to kneel to get down on the couch. Johnson asked Courtney if she could kneel by the sofa and Courtney told her she could. Johnson stated in her deposition that she asked Courtney "who they were looking for" and Courtney told her "to turn my head back around and lay down before she shot me" and that "the lady that told me to lay my head down, she had her gun in her hand. I know she had hers because I kindly turned to see — to ask her that question, but now as far as you know, it wasn't no clicking on it, but they had them in their hands."⁵ There is no evidence that Courtney ever pointed her gun at Johnson. Johnson did testify that when the officers entered they had their guns drawn, pointed "towards me," but that no officer pointed their gun specifically or directly at her.⁶

After conducting a quick sweep of the house and discovering that Howard was not there, most of the team members departed.⁷ Courtney and Marshall remained briefly to check on Johnson's condition. Courtney asked Johnson if she was ok and helped her up. Courtney then asked if she was going to be alright and if she needed any help. Johnson said that she was fine and did not need assistance. Courtney also apologized to her. Before leaving, Marshall gave his card to Johnson and told her that they would pay to repair her door, which had been damaged during the breach (and this was done). He also asked Johnson if she needed any medical attention, and she declined. Johnson was not hostilely or forcefully touched by any of the officers. However, after her daughter arrived later that day, Johnson went to the emergency room with chest pains and high blood pressure. She remained in the hospital for three days.

In late December 2001, Johnson filed this suit. She ultimately sought damages under 42 U.S.C. § 1983, Bivens v. Six Unknown Named Agents, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971), and the Federal Tort Claims Act, against the Task Force, City of Nacogdoches police officers Cain and Lightfoot, the City of Nacogdoches, Nacogdoches County, Nacogdoches deputy sheriffs Courtney and Mendiola, DEA agent Marshall and the United States, complaining that by the events of March 9, 2001, the defendants violated her rights under the Fourth Amendment to be free from...