Reimer v. Short

• Decision Date: 21 August 1978
• Docket Number: No. 75-1428,75-1428
• Citation: 578 F.2d 621
• Parties: Joe REIMER, Plaintiff-Appellant, v. Herman SHORT, Chief of Police, et al., Defendants-Appellees.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 621

578 F.2d 621

Joe REIMER, Plaintiff-Appellant, v. Herman SHORT, Chief of Police, et al., Defendants-Appellees.

No. 75-1428.

United States Court of Appeals Fifth Circuit.

Aug. 21, 1978.

Rehearing Denied Oct. 18, 1978.

Joe Reimer, pro se.

Joseph G. Rollins, Sr. Asst. City Atty., Roy F. Martin, III, Asst. City Atty., Houston, Tex., for defendants-appellees.

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

Before JONES, WISDOM and GODBOLD, Circuit Judges.

WISDOM, Circuit Judge:

Joe Reimer, the proprietor of an auto salvage business in Channelview, Texas, appearing pro se, brought this suit under 42 U.S.C. §§ 1981, 1982, 1983, and 1985 against the City of Houston, Houston's Chief of Police (Short), and two members of the Houston Police Department, Officers Adams and DeFoor. He alleges that during the summer of 1973, he was the victim of police harassment, unlawful searches of his business premises, and unlawful searches and seizure of his pickup truck. After the City of Houston and Police Chief Short were dismissed as defendants, the first trial of Reimer's civil rights action against Officers Adams and DeFoor ended in a mistrial before a deadlocked jury. At the second trial, the jury found for the defendant officers, and the district court entered judgment accordingly. On this appeal, Reimer raises eleven claims of error but essentially seeks three things: (1) the reversal of the jury's verdict for the defendant policemen in the civil rights action, (2) the reinstatement of the City of Houston and Police Chief Short as defendants, and (3) the reversal of a state conviction for theft of the pickup truck. Reimer's vigorous pro se advocacy has borne some fruit. We reverse the jury verdict as to some of the actions of the defendant police officers, but affirm the district court on all other points. ¹

I

Reimer alleges that during the period from June 19, 1973 to September 10, 1973, Adams and DeFoor came to his salvage lot at least ten times to inventory the vehicles in his possession and check for stolen merchandise. All visits were made without warrants. Although the police officers contend that the searches were made with Reimer's consent, Reimer asserts that he never consented to them. He contends that the officers interfered with his business by telling customers they had "closed" the lot and circulating rumors that Reimer was selling stolen vehicles.

At about 3:00 A.M. on September 10, 1973, Adams noticed a truck bearing the license plate FK 9100 parked on the street. He remembered seeing that license number a few weeks earlier on a wrecked truck. Upon checking with state authorities, he learned that the license plate should have been on a truck with a vehicle identification number (VIN) different from that on the parked truck. He set up a surveillance and impounded the truck when one Elton Brown, who had borrowed the truck from Reimer, attempted to drive it away. Later, Adams and DeFoor and others conducted a thorough inspection of the truck, disassembling it in a search for identification numbers. The officers did not obtain a warrant for either the seizure of the truck or the search while it was in police custody.

Reimer argued that the truck in question was his, having been reconstructed from three vehicles: a blue 1968 Ford, a green 1972 Ford (VIN F10GKP62670, with license FK 9100), and a red and white 1970 Ford (VIN F10GKH11749). He had documentation of title for the latter two vehicles and maintained that under Texas law the FK 9100 license plate was the authorized one for the hybrid truck. His only proof of title with regard to the body portion of the vehicle was his own testimony that he once had the certificate of title but no longer had it because the police officers had taken it and were withholding it. The police maintained that except for the frame and a few other parts of the hybrid truck, the vehicle was a truck that was stolen from one John Hubbard. Hubbard identified the truck by informing the police of several minor details about it that only its owner would have known. Reimer asserts that this identification was the product of a conspiracy between the police and Hubbard and that another man has since been convicted for the theft of Hubbard's truck.

After the police filed charges against Reimer, but before his arrest and indictment, Reimer brought this civil rights action. On October 26, 1973, he filed a "Motion for the Return of the Seized Property and the Suppression of Evidence", which was granted in a default judgment entered January 7, 1974 "insofar as it refers to one 1970 Ford pick-up truck with serial numbers F10GKH11749 and F10GKP62670". Reimer made much of this default judgment, even convincing a state judge at one point that it constituted an order binding the state court to suppress evidence of the truck in state criminal proceedings against him. A later amendment of the minute entry covering the judgment and a qualification in the minute entry itself make clear that the order, properly construed, was only an order directing the police to return the truck to Reimer. The proceeding was not an adjudication of Reimer's title to the truck nor a determination that the seizure and suppression claims were valid.

Despite the January 7, 1974 order to return the truck, the police did not return it until January 18, 1974 and returned it then only after Reimer filed a motion to show cause why they should not be held in contempt. The police returned the truck but retained its identification plate, making Reimer's possession of the truck technically illegal. The defendants finally returned this plate on August 23, 1974, in response to a second contempt motion Reimer filed. After returning the plate, however, the defendants placed a "stop" on the title of the truck, preventing the vehicle from being transferred. Reimer challenged this action with a third contempt motion, but that motion was denied.

After the conclusion of Reimer's civil rights action against the police, the state tried its auto theft charges against him. On March 25, 1975, a jury convicted Reimer of the theft of the Ford pickup truck. The Texas Court of Criminal Appeals, however, granted him a new trial on September 23, 1975, because of newly discovered evidence. Weary, so Reimer says, of his battle against "City Hall" and the Houston Police Department, on March 1, 1976, he entered a plea of nolo contendere to a charge of misdemeanor auto theft. He received a thirty-day sentence. In addition to seeking a reversal of the judgment in his civil rights action, Reimer also challenges the disposition of the state criminal case against him on this appeal.

II

We dispose of the challenge to the nolo contendere plea first. Reimer is attempting to challenge his plea of nolo contendere to a state criminal charge through an appeal of a federal civil rights action. This he cannot do. First, and most obviously, Reimer has never challenged the disposition of the state criminal charges in a federal district court, so there is no lower court order regarding the matter on which an appeal could be based. Consequently, this matter is not properly before us on appeal. Second, although Reimer's plea was one of nolo contendere rather than guilty, he is still challenging the fact or length of his confinement. The relief sought is thus habeas corpus in nature, and under Preiser v. Rodriguez, 1973, 411 U.S. 475, 93 S.Ct. 1827, 36 L.Ed.2d 439, Reimer must exhaust adequate state remedies before bringing suit for relief from his nolo contendere plea in federal district court.

We next reach Reimer's contention that the district court erred in dismissing Police Chief Short and the City of Houston as defendant parties in the civil rights suit. The district court did not err in granting Police Chief Short's motion to dismiss him as a defendant after the conclusion of the plaintiff's case at the first trial. "(T)here is no evidence that he participated in, had knowledge of, or was negligent with regard to the actions of the (policemen which were the subject of Reimer's complaint)". ² Anderson v. Nosser, 5 Cir. 1971, 438 F.2d 183, 199, modified on other grounds, 456 F.2d 835 (en banc), cert. denied, 409 U.S. 848, 93 S.Ct. 53, 34 L.Ed.2d 89 (1973). As this Court noted in Anderson, quoting Jordan v. Kelly, 1963, W.D.Mo., 223 F.Supp. 731, 739: "The chief of police would not be responsible for the wrongful acts of the officer unless he was present or unless it is shown he directed such acts or personally cooperated in them . . .." 438 F.2d at 199.

As to the City of Houston, the district court applied Monroe v. Pape, 1961, 365 U.S. 167, 187-92, 81 S.Ct. 473, 5 L.Ed.2d 492, and found that the City of Houston was not "a person" for the purposes of § 1983. Although the court was correct at the time, the Supreme Court has since overruled that holding of Monroe. Monell v. Department of Social Services of the City of New York (1978), --- U.S. ----, 98 S.Ct. 2018, 56 L.Ed.2d 611. The Supreme Court did not find cities liable to the same extent as any other employer.

"On the other hand, the language of § 1983, read against the background of the same legislative history, compels the conclusion that Congress did not intend municipalities to be held liable unless action pursuant to official municipal policy of some nature caused a constitutional tort. In particular, we conclude that a municipality cannot be held liable solely because it employs a tortfeasor or, in other words, a municipality cannot be held liable under § 1983 on a respondeat superior theory."

--- U.S. at ----, 98 S.Ct. at 2036. As with Chief Short, there is no evidence that the City of Houston "acted" through its policies, formally or informally adopted, to deprive Reimer of his constitutional rights. Thus, because the only theory under which the City of Houston could be held liable is respondeat superior, the action was properly dismissed as to the...