Johnnie Grimes v. Russell Thomason , 416 F. App'x 465 ( 2011 )

Case: 10-10760 Document: 00511406408 Page: 1 Date Filed: 03/10/2011
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
March 10, 2011
No. 10-10760 Lyle W. Cayce
Summary Calendar Clerk
JOHNNIE P. GRIMES; JIMMY DOOL, JR.,
Plaintiffs-Appellants
v.
RUSSELL THOMASON; WAYNE BRADFORD;
JOE KING, III; RAY DARDIN; CECIL FUNDERBURG;
EASTLAND COUNTY, TEXAS; CITY OF EASTLAND, TEXAS,
Defendants-Appellees
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 1:09-CV-196
Before REAVLEY, DENNIS, and CLEMENT, Circuit Judges.
PER CURIAM:*
Plaintiffs-Appellants Johnnie P. Grimes and Jimmy Dool, Jr. appeal the
district court’s (1) order granting summary judgment for Defendants-Appellees
and denying Appellants’ motion to amend their complaint and join new parties;
and (2) entry of final judgment. Construed liberally, Appellants’ pro se
complaint articulates claims for malicious prosecution, unlawful search and
*
Pursuant to 5TH CIR . R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .
R. 47.5.4.
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No. 10-10760
seizure, and violations of due process stemming from a search pursuant to a
warrant and resulting state court default judgments of forfeiture. Mayfield v.
Tex. Dep’t of Criminal Justice, 529 F.3d 599, 604 (5th Cir. 2008) (pro se
complaints are construed liberally). The district court granted summary
judgment for the individual Appellees based on qualified immunity, and it sua
sponte dismissed as frivolous the claims against the municipal Appellees
pursuant to 28 U.S.C. § 1915(e)(2).1 The district court also denied Appellants’
motions to amend and join parties, finding that they were futile. We affirm.
1. We review a district court’s order granting summary judgment de novo.
Williams v. Wynne, 533 F.3d 360, 365 (5th Cir. 2008). On Appellants’ claims for
violations of due process for lack of notice, the district court found that Appellant
Jimmy Dool, Jr. owned no property subject to forfeiture. Dool argues that his
property was returned to him but not until after the default judgments were
entered against Appellant Johnnie P. Grimes. Since Grimes’s default judgments
have no bearing on Dool, and Dool’s property was returned, his due process claim
fails. The district court also found that in fact Grimes was given notice of the
hearing on default judgment. Grimes contends that the district court erred
because the notice came in the same envelope as requests for admission, which
was dated a day before the court set the hearing on default and, therefore,
Appellees cannot prove that he received notice. Even if this argument were
meritorious, which it is not, Grimes raises it for the first time on appeal, and it
is, therefore, waived. Jethroe v. Omnova Solutions, Inc., 412 F.3d 598, 601 (5th
Cir. 2005).
2. For their unlawful search and seizure claim, Appellants argue that
Appellees unlawfully exceeded the scope of their search warrant when they
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“Notwithstanding any filing fee, or any portion thereof, that may have been paid, the
court shall dismiss the case at any time if the court determines that . . . the action or appeal
is frivolous[.]” 28 U.S.C. § 1915(e)(2)(B)(i).
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No. 10-10760
searched Grimes’s residence. The district court held, and we agree, that the
evidence adduced by Appellants demonstrates that a neutral intermediary—the
Magistrate Judge—reviewed the Appellees’ affidavits supporting the warrant
and made an independent determination of probable cause. See United States
v. Harris, 566 F.3d 422, 433–34 (5th Cir. 2009) (outlining the limited
circumstances under which an issuing magistrate may be considered not neutral
and detached). Further, the Appellants provided no factual basis for their
assertion that the Appellees exceeded the authority of the warrants. There was
no illegal search and seizure. And, because Appellants assert no other viable
claims that their constitutional rights were violated in connection with their
claim of malicious prosecution, their malicious prosecution claim must also fail.
Cuadra v. Houston Ind. Sch. Dist., 626 F.3d 808, 812 (5th Cir. 2010) (“[A]
freestanding 42 U.S.C. § 1983 claim based solely on malicious prosecution [is]
not viable.”). Further, having found no constitutional violations on the part of
the individual Appellees, the district judge correctly dismissed the municipal
Appellees.
3. Appellants also appeal the district court’s denial of their motions to amend
and to join new parties. However, Appellants merely state that they request
review of the rulings and that they disagree with the district court’s ruling that
amendment would be futile. While we construe the Appellants’ pro se brief
liberally, even pro se litigants must brief their arguments to preserve them.
Yohey v. Collins, 985 F.2d 222, 224–25 (5th Cir. 1993); Brinkmann v. Dallas
Cnty. Deputy Sheriff Abner, 813 F.2d 744, 748 (5th Cir. 1987). Therefore, we
consider Appellants arguments on this issue to be abandoned.
AFFIRMED.
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