Barnes v. Madison , 79 F. App'x 691 ( 2003 )

United States Court of Appeals
Fifth Circuit
F I L E D
November 4, 2003
IN THE UNITED STATES COURT OF APPEALS
Charles R. Fulbruge III
FOR THE FIFTH CIRCUIT Clerk
_____________________
No. 02-50937
_____________________
CAROLYN BARNES, Individually and as Next Friend of William
Zimmer Barnes, a Minor, and Charles Austin Lee Bednorz, a
Minor
Plaintiff - Appellant
v.
KEVIN RINDLER MADISON; ET AL
Defendants
KEVIN RINDLER MADISON; JOSEPH M OSWALD; BARBARA J THOMPSON;
ALAN THOMPSON; WILLIE RICHARDS; CITY OF ROUND ROCK TEXAS;
WILLIAMSON COUNTY, TEXAS; CITY OF CEDAR PARK; DUGGER,
Detective; MICHAEL P DAVIS
Defendants - Appellees
_________________________________________________________________
Appeal from the United States District Court
for the Western District of Texas
No. A-01-CV-547-H
_________________________________________________________________
Before KING, Chief Judge, and DAVIS and EMILIO M. GARZA, Circuit
Judges.
PER CURIAM:*
*
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that this opinion should not be published and is not precedent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.
The plaintiff sued several local governments and their
employees for violations of federal and state law arising out of
an allegedly illegal arrest. The district court granted the
defendants’ motions for summary judgment and entered an order of
sanctions against the plaintiff. The plaintiff now appeals. For
the following reasons, we AFFIRM.
I. FACTUAL AND PROCEDURAL BACKGROUND
This case began with a speeding ticket that plaintiff
Carolyn Barnes received in Cedar Park, Texas. The speeding
ticket, along with an accompanying citation for driving without
proof of insurance, required Barnes to appear in Cedar Park’s
municipal court on or before April 5, 2000. Barnes claims that
she entered a legally sufficient appearance in March 2000 by
sending the court a request form for a defensive driving course.
She also came to the court in person on April 5, but Cedar Park
court employees informed her on that date that she must present
her driving record in order to qualify for the defensive driving
course. The employees suggested that Barnes return on April 7,
and Barnes did return on that date with her driving record in
hand. The court personnel then informed her, however, that she
was ineligible to take the defensive driving course, because her
driving record showed that she had already taken such a course
within the previous year. Barnes was told that she could return
on a later date to talk to a judge about resolving the matter,
2
but she declined. Barnes instead wrote a letter to the municipal
court explaining the situation and asking for help in resolving
it.
Barbara Thompson, a clerk of the Cedar Park municipal court,
sent Barnes a letter on April 10 directing Barnes to make an
appearance within ten days. According to Barnes, the letter was
returned to the court on April 13 because it was sent to an old
address. In any case, the ticket remained outstanding, and on
April 25 a warrant for Barnes’s arrest was issued, with Officer
Alan Thompson of the Cedar Park police acting as complaining
witness. The failure-to-appear warrant was not executed at that
time.
Clerk Thompson sent Barnes another letter on May 15 that
mentioned the warrant and directed Barnes to speak with one of
the municipal court judges immediately. Barnes says that she
received the letter upon returning from vacation on May 29; until
then, she had not been aware of the arrest warrant. Upon reading
the letter from the court, Barnes immediately wrote a letter to
Clerk Thompson contending that she had in fact made a valid
appearance in court and insisting that the arrest warrant was
therefore improper. Barnes’s letter to the court, however, went
well beyond expressing mere irritation at a perceived
bureaucratic slip-up. The letter concluded with the following
passage:
3
I WILL FIGHT TO THE DEATH WITH ANYONE WHO TRIES TO PULL
ME FROM MY HOME, MY CAR, OR MY WORKPLACE!!! I WILL NOT
BE ARRESTED AND THROWN IN JAIL! WHOEVER DIES, THE BLOOD
WILL BE ON YOUR HANDS!
. . .
I WILL NOT GO PEACEFULLY TO ANY JAIL, I WOULD RATHER DIE
FIRST AND I WILL DIE FIGHTING FOR MY FREEDOM BECAUSE I
HAVE NOT DONE ANYTHING FOR WHICH I DESERVE TO BE THROWN
IN JAIL!
THIS MALICIOUS GOVERNMENTAL ACTIVITY AND ABUSE OF OUR TAX
DOLLARS IS THE CAUSE OF THE INCREASE IN VIOLENCE IN OUR
SOCIETY! THIS IS WHY PEOPLE BOMB GOVERNMENTAL OFFICES,
KILL COPS, AND KILL JUDGES BECAUSE OF ALL THE LIES AND
ABUSES!
. . .
IF I DO NOT HEAR FROM YOU WITHIN TEN DAYS THAT THIS FALSE
AND MALICIOUS ARREST WARRANT HAS BEEN RECALLED AND IF I
DO NOT RECEIVE THE PERSONAL WRITTEN ASSURANCE OF ALL YOUR
JUDGES THAT I WILL NOT BE HARASSED, MOLESTED, DISTURBED,
ARRESTED, OR JAILED WHEN I COME IN TO RESOLVE THIS
MATTER, THEN I WILL ASSSUME [sic] THAT WE REALLY ARE AT
WAR AND WILL ACT ACCORDINGLY. . . . I AM WILLING TO DIE
IN DEFENSE OF THIS OUTRAGEOUS INJUSTICE, ARE YOU WILLING
[to] DIE TO PROMOTE IT? IF I SEE ANY UNIFORMED PEOPLE
COME NEAR MY FAMILY, I WILL NOT WAIT TO ASK QUESTIONS!
I WILL DEFINITELY RESIST ARREST ANYTIME THERE IS A FALSE
AND MALICIOUS ABUSE OF PROCESS!
Clerk Thompson perceived the letter as a threat against her,
the court staff, and the municipal judges. She therefore turned
the letter over to the Cedar Park Police Department, where a Sgt.
Rackley determined that the letter constituted a “terroristic
threat” under § 22.07 of the Texas Penal Code.1 Officer Alan
1
The statute provides, in part:
(a) A person commits an offense if he threatens to
commit any offense involving violence to any person or
property with intent to:
4
Thompson signed a statement of facts for probable cause and
presented it to Judge Joseph Oswalt of the Cedar Park municipal
court. Sitting as a magistrate, Judge Oswalt issued an arrest
warrant on June 1.
Cedar Park police officers informed the City of Round Rock’s
police department of the situation, and Cedar Park Officer
Deborah Dugger appears to have faxed them documents related to
the warrant. On June 12, Officer Alan Thompson of Cedar Park,
accompanied by Round Rock police officers, went to Barnes’s
office in Round Rock to serve the warrant, but Barnes was
apparently not present. The next day, Round Rock police
officers, including Officer Willie Richards, arrested Barnes at
her Round Rock office. Richards allegedly searched Barnes’s
purse and belongings; Richards admits that he searched Barnes’s
purse for weapons and keys with which to lock the office.
(1) cause a reaction of any type to his threat by
an official or volunteer agency organized to deal
with emergencies;
(2) place any person in fear of imminent serious
bodily injury; or
(3) prevent or interrupt the occupation or use of
a building; room; place of assembly; place to
which the public has access; place of employment
or occupation; aircraft, automobile, or other form
of conveyance; or other public place; or
(4) cause impairment or interruption of public
communications, public transportation, public
water, gas, or power supply or other public
service.
TEX. PENAL CODE ANN. § 22.07 (Vernon 2003).
5
Barnes was taken to the Williamson County jail for booking.
She complains that she was denied food, water, and telephone
calls during her approximately ten-hour stay, seven hours of
which came after she had posted bail. She claims as well that
jail employees misled two individuals who had come to give Barnes
a ride home by telling the individuals that Barnes would not be
released that night. She was eventually released around midnight
and then began to walk home; during the walk she was allegedly
further harassed and threatened by Williamson County officials.
When she returned home, she says that her home, office, and
vehicles had been ransacked; she blames Williamson County
officials, since they held her keys during her incarceration.
Barnes also claims that Williamson County employees harassed her
son at school and sprayed his belongings with a chemical that
would attract drug-sniffing dogs. This mistreatment, according
to Barnes, is motivated in part by the county’s desire to
retaliate against her for a lawsuit she brought against it in
state court several years earlier. Williamson County admits the
basic facts surrounding Barnes’s stay at the jail but denies her
various claims of mistreatment.
On June 7, 2001, Barnes filed suit in state court against
the following individuals and governmental entities: Cedar Park
municipal judges Joseph Oswalt and Kevin Madison, Barbara
Thompson of the Cedar Park municipal court clerk’s office, Alan
Thompson and Deborah Dugger of the Cedar Park Police Department,
6
and the City of Cedar Park (collectively, “Cedar Park
defendants”); the City of Round Rock and Willie Richards of the
Round Rock Police Department (collectively, “Round Rock
defendants”); and Williamson County. Barnes’s suit included
§ 1983 claims predicated on violations of several constitutional
provisions,2 as well as a host of state law claims.3 Barnes
filed suit on her own behalf and as next friend of her two minor
children. Barnes appeared pro se in the district court, as in
this court, but she is a licensed attorney.4
The case was removed to federal district court on August 21,
2001. As suggested by the nearly two hundred entries on the
district court’s docket sheet, the proceedings were marked by a
plethora of motions and disputes, many of which were referred to
the magistrate judge. The court repeatedly ordered Barnes to
amend her long-but-vague complaint in order to bring it into
compliance with Rule 8’s requirement that the averments be
“simple, concise, and direct.” See FED. R. CIV. P. 8(e)(1). Each
2
Namely, Barnes asserts violations of the First, Fourth,
Fifth, Sixth, Eighth, and Fourteenth Amendments.
3
These include negligence, gross negligence, negligent
infliction of emotional distress, assault, battery, intentional
infliction of emotional distress, conspiracy, respondeat superior
liability, false arrest, false imprisonment, malicious
prosecution, abuse of process, trespass, conversion, false light
invasion of privacy, defamation, tortious interference with
familial relations, and claims under the Texas Tort Claims Act.
4
Since Barnes is an attorney, we do not construe her
pleadings with the lenience normally afforded pro se litigants.
See Olivares v. Martin, 555 F.2d 1192, 1194 n.1 (5th Cir. 1977).
7
amended complaint maintained the character of its predecessors,
generally growing longer each time.
Barnes’s Third Amended Complaint added Michael Davis as a
new defendant.5 Davis was at the time Williamson County’s
attorney of record. The complaint accused Davis of faxing
defamatory letters and, more generally, of playing a part in the
other defendants’ various abuses and conspiracies. A Fourth
Amended Complaint came on November 30, 2001. Davis moved to
dismiss the claims against him on March 21, 2002, and his motion
was granted in part on May 24, 2002. On that same day, the
district judge denied Barnes’s motion to file a Fifth Amended
Complaint and add new defendants.
The claims against all of the defendants were disposed of in
the next two months. On June 11, 2002, the district court
granted the Cedar Park and Round Rock defendants’ motion for
summary judgment on all claims, and it denied Barnes’s motion for
partial summary judgment.6 The court granted summary judgment to
the remaining defendants (Davis and Williamson County) on all
remaining claims on July 22, 2002.
5
Other new defendants were added as well, but they were
dismissed from the case for lack of proper service.
6
Barnes’s motion, which had been filed on December 26,
2001, was denied as moot as to the Cedar Park and Round Rock
defendants, given the court’s grant of summary judgment in their
favor. Barnes’s motion was denied on the merits as to the
remaining defendants.
8
Williamson County requested sanctions against Barnes in the
amount of $8,764 for legal fees expended in connection with
various motions and claims that the county described as
completely frivolous. In an order dated August 16, 2002, the
district court granted them $799, limited to expenses caused by
Barnes’s failure to appear at her deposition.
Barnes now appeals the judgment below. Her appellate brief
raises a number of instances of alleged error, and it obliquely
suggests many more. Barnes asserts that the district court
committed several errors of law in granting the defendants’
motions for summary judgment. In addition, Barnes also finds
error in the lower court’s administrative handling of her case,
including its rulings on various motions.
II. STANDARD OF REVIEW
We review the district court’s grant of summary judgment de
novo, applying the same standard as the district court. See Vela
v. City of Houston, 276 F.3d 659, 666 (5th Cir. 2001). Summary
judgment is proper when there is no genuine issue as to any
material fact and the moving party is entitled to judgment as a
matter of law. FED. R. CIV. P. 56(c). We view the evidence in
the light most favorable to the non-movant, see Coleman v.
Houston Indep. Sch. Dist., 113 F.3d 528, 533 (5th Cir. 1997), but
the non-movant must go beyond the pleadings and bring forward
specific facts indicating a genuine issue for trial, see Celotex
9
Corp. v. Catrett, 477 U.S. 317, 324 (1986). If the non-movant
fails to present facts sufficient to support an essential element
of his or her claim, summary judgment should be granted. See id.
at 322-23.
The district court’s rulings on various matters relating to
case management and discovery are, as a general matter, reviewed
for abuse of discretion. See, e.g., Pierce v. Underwood, 487
U.S. 552, 558 n.1 (1988); McKethan v. Tex. Farm Bureau, 996 F.2d
734, 738 (5th Cir. 1993). To the extent that this general
standard of review applies differently with respect to different
types of rulings, we will discuss the relevant variations as
appropriate.
III. DISCUSSION
As we have said, Barnes raises a number of issues on appeal.
At one point, she states that she is appealing “all . . . claims
as to all Appellees.” Barnes cannot thereby succeed in giving us
an open-ended mandate to review the whole course of the
proceedings below. We review only those points of purported
error that the appellant designates and actually argues; other
issues are considered waived. See FED. R. APP. P. 28(a)(5), (9)
(requiring that briefs designate issues for review and provide
contentions, reasons, and citations); Trevino v. Johnson, 168
F.3d 173, 181 n.3 (5th Cir. 1999) (stating that inadequately
10
argued issues are waived). Applying that rule, we find nine
issues on appeal.
The district court’s grant of summary judgment to the
defendants rested in large part on Barnes’s failure to plead her
claims properly and support her allegations with competent
summary judgment evidence. Barnes argues that she was unable to
meet those demands because of the court’s handling of the case.
We therefore begin by reviewing those procedural rulings of the
district court that Barnes argues thwarted her ability to make
out her case. We then turn to her several points of error that
address substantive legal questions related to the grant of
summary judgment. Last, we consider the district court’s
sanctions order.
A. Amendment of Pleadings
Barnes had repeatedly been given leave to amend her
pleadings. On April 15, 2002, she requested leave to file a
Fifth Amended Complaint that would add claims involving new
events and defendants. The district court denied this request by
order dated May 24, 2002. Barnes argues that the district court
abused its discretion in doing so.
Although the general rule is that leave to amend pleadings
should be freely granted when justice requires, see FED. R. CIV.
P. 15(a), in this case Barnes was also required to show “good
cause” why her request should be granted, because her request
11
came after the scheduling order’s January 27 deadline for
amendments. See FED. R. CIV. P. 16(b) (providing that a
scheduling order “shall not be modified except upon a showing of
good cause”); S&W Enters. v. SouthTrust Bank of Ala., 315 F.3d
533, 536 (5th Cir. 2003) (stating that “Rule 16(b) governs
amendment of pleadings after a scheduling order deadline has
expired. Only upon the movant’s demonstration of good cause to
modify the scheduling order will the more liberal standard of
Rule 15(a) apply to the district court’s decision to grant or
deny leave.”).7 Having assumed that Barnes could show good cause
under Rule 16(b), the district court nonetheless found that
Barnes’s request to amend should be denied.
The district court did not abuse its discretion in denying
Barnes’s request. Even if we assume, as did the district court,
that Barnes can overcome the hurdle of Rule 16(b), her request
did not satisfy the requirements of Rule 15(a). While Rule 15(a)
provides a rather liberal standard for granting leave to amend,
7
Barnes points out that she had previously moved for
leave to amend on December 5, 2001, before the scheduling order’s
deadline. The December 5 motion was not accompanied by a
proposed amended complaint, nor did it describe when she wished
to file one. Rather, the motion prayed generally for leave to
file an indeterminate number of “further amendments” at
unspecified future dates when “Plaintiffs have adequate time to
accomplish this task and as discovery develops.” The district
court did not abuse its discretion in denying this extraordinary
open-ended request. The district court’s decision was justified
by the same considerations that, as we explain in the text,
justified the denial of Barnes’s more conventional April 15
motion for leave to amend.
12
it has long been recognized that certain factors weigh against
granting leave. These factors include “undue delay, bad faith or
dilatory motive on the part of the movant, repeated failure to
cure deficiencies by amendments previously allowed, undue
prejudice to the opposing party by virtue of allowance of the
amendment, [and] futility of amendment.” Foman v. Davis, 371
U.S. 178, 182 (1962). The district court found that several of
these factors were present, and we find that its determination is
amply supported by the record. For example, we note that
Barnes’s previous amended complaints did not comport with the
district judge’s instructions to streamline and clarify her
averments. On the contrary, the amended complaints continued to
make conclusory allegations and refer to extraneous matters.
Barnes’s motion for leave to amend suggested that further
amendments would be necessary as discovery revealed more
defendants and further wrongs. Given the risk of an unending
stream of unsatisfactory amendments, we conclude that the
district court did not abuse its discretion in finally calling a
halt to the amendment process.
B. Discovery Issues
Barnes has strenuously contended that her efforts at
discovery were continually thwarted by the defendants and the
magistrate judge.8 To the extent that many of her complaints are
8
Barnes complains that most of the discovery matters
were referred to the magistrate judge rather than handled
13
directed toward the defendants’ conduct, we are not the proper
audience. The defendants may have been recalcitrant and stingy
in discovery; if so, Barnes had the option of seeking court
orders compelling discovery. See FED. R. CIV. P. 37(a). To the
extent that her arguments are directed against the court’s
rulings on discovery matters, we review those rulings for abuse
of discretion, bearing in mind that the trial court enjoys broad
latitude in supervising the conduct of discovery. See McKethan
v. Tex. Farm Bureau, 996 F.2d 734, 738 (5th Cir. 1993); Landry v.
Air Line Pilots Ass’n Int’l, 901 F.2d 404, 436 & n.114 (5th Cir.
1990).
Barnes’s argument on appeal does not so much focus on errors
in particular discovery rulings but instead attacks the court’s
general pattern of refusing to help her achieve meaningful
discovery. Fairly early in the proceedings, the magistrate judge
granted the defendants a temporary protective order against
Barnes’s discovery requests. His stated reason for doing so was
that the parties had not yet engaged in a discovery conference;
Rule 26(d) provides that parties cannot seek discovery until such
a conference has occurred. See FED. R. CIV. P. 26(d), (f).
Barnes has not identified any error in this ruling. The case
then proceeded for the next several months with relatively little
personally by the district judge. The procedure used below was
proper, however, for such matters can be referred to the
magistrate judge without the permission of the parties. See 28
U.S.C. § 636(b)(1) (2000).
14
activity on the discovery front. It was only in the last days
leading up to the May 27, 2002, discovery deadline that Barnes
began to press the issue with a motion to compel, despite the
fact that Barnes had received the defendants’ objections to her
discovery requests months earlier. The magistrate judge denied
Barnes’s motion to compel in almost every respect. Since many of
her discovery requests were facially overbroad and irrelevant, we
see no abuse of discretion in this decision. Given Barnes’s
delay in seeking the court’s assistance in compelling discovery,
we do not accept her argument that the magistrate judge can be
blamed for the difficulties she encountered in trying to gather
evidence before the close of discovery.
C. Delay in Ruling on Barnes’s Motion for Partial Summary
Judgment
Barnes moved for partial summary judgment on December 26,
2001. The district court did not rule on her motion until June
11, 2002, on which date the court granted summary judgment to the
Cedar Park and Round Rock defendants, who had moved for summary
judgment on March 1, 2002. The district court denied Barnes’s
motion as moot with respect to the Cedar Park and Round Rock
defendants and denied it on the merits as to the remaining
defendants (Davis and Williamson County).
Barnes argues that the district court erred in delaying its
ruling and that the delay impeded her ability to conduct
discovery. The defendants had resisted many of her discovery
15
requests by claiming immunity, Barnes explains, and so she sought
partial summary judgment in order to resolve that issue early in
the proceedings. Barnes asserts that because the district court
did not rule on her motion for partial summary judgment in a
timely fashion, the defendants continued to resist discovery and
thwart her efforts to gather evidence with which to respond to
the defendants’ own subsequent motions for summary judgment.9
We do not believe that the district court’s delay was an
abuse of discretion. We have often remarked that the district
court enjoys a broad latitude over matters such as case
management and scheduling. See, e.g., United States v. Hughey,
147 F.3d 423, 431 (5th Cir. 1998); Guillory v. Domtar Indus., 95
F.3d 1320, 1328-29 (5th Cir. 1996). The timing of the court’s
ruling on a motion can in some rare cases amount to an abuse of
discretion, but only if the district court’s timing prejudices a
party. See, e.g., Prudhomme v. Tenneco Oil Co., 955 F.2d 390,
393-96 (5th Cir. 1992) (holding that the district court abused
its discretion when it decided on the morning of trial to allow
the plaintiff to pursue a new theory of recovery when the
defendant had relied on the court’s earlier dismissal of an
attempt to add that theory).
9
As we have already explained, Barnes had open to her at
all times the option of using motions to compel, but it was not
until very late in the proceedings that she used that option.
16
In this case, we cannot say that Barnes was prejudiced by
the district court’s delay in ruling on her motion for partial
summary judgment. With respect to most of the issues on which
Barnes sought summary judgment, it is not clear how a favorable
decision would have advanced her objectives. For example, Barnes
asked for summary judgment on the question of whether she had
made an adequate appearance in the municipal court on her traffic
ticket. She has repeatedly sought vindication on this issue, but
in truth it is not central to the case. The defendant officials
can still enjoy qualified immunity from Barnes’s suit even if the
court staff incorrectly believed that Barnes had failed to
appear. Of the issues on which she sought summary judgment, the
only one that is arguably related to an immunity defense is her
request for summary judgment on whether the defendants had “no
legal basis, factual basis, or jurisdictional basis” to arrest
her. To the extent that this issue was material to her claims,
the district court simply rejected Barnes’s position for the
reasons set out in its June 11, 2002, decision granting summary
judgment to the Cedar Park and Round Rock defendants. Thus, it
cannot be said that Barnes’s case was harmed by the district
court’s delay in ruling on her motion.
We turn now to those points of error that go to the
substance of the district court’s summary judgment rulings.
D. Free Speech
17
Barnes claims that her May 29, 2000, letter to the Cedar
Park municipal court was speech protected by the First Amendment
to the United States Constitution and the cognate provision of
the Texas Constitution. The court staff, in contrast, viewed the
letter as a threat against them, and Barnes was eventually
arrested for making a terroristic threat in violation of Texas
Penal Code § 22.07. The governmental reaction to the letter,
says Barnes, violated her right to free speech. Moreover, since
the letter was constitutionally protected, the arrest warrant,
her subsequent arrest, and her temporary confinement in jail were
all illegal.
The district court took care to explain that the various
defendants who responded to Barnes’s letter were shielded by
immunity. First, absolute immunity cloaks Judge Oswalt, who,
sitting as magistrate, signed the arrest warrant and set Barnes’s
bond. Since these are acts of the type normally performed by
judges, they are judicial acts shielded by absolute judicial
immunity from liability under both federal and state law. See
Stump v. Sparkman, 435 U.S. 349, 362 (1978); Boyd v. Biggers, 31
F.3d 279, 284-85 (5th Cir. 1994); Turner v. Pruitt, 342 S.W.2d
422, 423 (Tex. 1961); Garza v. Morales, 923 S.W.2d 800, 802 (Tex.
App.–-Corpus Christi 1996, no writ). This judicial immunity also
extends to other defendants, such as Clerk Thompson, to the
18
extent that they were acting at the judge’s direction. Tarter v.
Hury, 646 F.2d 1010, 1013 (5th Cir. 1981).10
All of the other officials in this suit are entitled to
assert the defense of qualified immunity. With respect to
federal claims under § 1983, this means that they cannot be held
liable unless their conduct was objectively unreasonable in light
of clearly established law. See Harlow v. Fitzgerald, 457 U.S.
800, 818 (1982); Hare v. City of Corinth, 135 F.3d 320, 325 (5th
Cir. 1998). Under Texas law, which is in relevant respects
similar, officials are immune as long as their actions are
consistent with what reasonably prudent officials could have
believed was appropriate at the time. See City of Lancaster v.
Chambers, 883 S.W.2d 650, 655-57 (Tex. 1994).
On appeal, Barnes argues that no reasonable official could
fail to realize that her letter was protected speech. Although
Barnes does not completely spell out the argument, this is
presumably meant as an attack upon the qualified immunity defense
applicable to some of the defendants. If that is her argument,
we must disagree with her. A reasonable official could believe
that Barnes had violated the terroristic threat statute. The
statute is violated if a person threatens violence to another
with the intent to: 1) provoke a reaction by emergency agencies,
10
Barnes suggests that judicial immunity is not available
in this case because the municipal court lacked all jurisdiction
over the crime of making a terroristic threat. This issue is
discussed infra in Part III.E.
19
2) place a person in fear of imminent bodily injury, 3) interrupt
the use of a building, or 4) interrupt public services. TEX.
PENAL CODE ANN. § 22.07. The requisite intent can be inferred from
the acts and words of the speaker. Cook v. State, 940 S.W.2d
344, 347 (Tex. App.-–Amarillo 1997, pet ref’d). Regardless of
Barnes’s true intent, a reasonable official who read her May 29
letter could have concluded that Barnes intended to create a fear
of imminent bodily harm when Barnes asked whether the court
employees were “WILLING [to] DIE” for not recalling the failure-
to-appear warrant; the same reaction might reasonably follow from
reading that Barnes would consider herself “AT WAR AND WILL ACT
ACCORDINGLY.” Likewise, there was reasonable cause to perceive
an intent to put law enforcement officers into fear of imminent
harm if they tried to serve Barnes with the failure-to-appear
warrant: “I WILL FIGHT TO THE DEATH WITH ANYONE WHO TRIES TO PULL
ME FROM MY HOME, MY CAR, OR MY WORKPLACE!!! . . . IF I SEE ANY
UNIFORMED PEOPLE COME NEAR MY FAMILY, I WILL NOT WAIT TO ASK
QUESTIONS!” That these threats are for the most part
conditional–-that is, predicated upon the officials engaging in a
certain course of conduct–-does not mean that they necessarily
lack the imminence required under the statute. See id. at 347-
49. Whether or not Barnes actually had the intent necessary to
support a conviction under the statute, we cannot say that those
who read her letter reacted unreasonably in referring the matter
to the police and securing an arrest warrant.
20
The terroristic threat statute has not been held
unconstitutional by any court, nor does it suffer from obvious
facial unconstitutionality. Reasonable officials are therefore
entitled to rely upon its validity without subjecting themselves
to liability in damages. See Vela v. White, 703 F.2d 147, 152-53
(5th Cir. 1983) (per curiam) (finding that qualified immunity was
proper where officials enforced a statute that had not been
declared unconstitutional); see also Dittman v. California, 191
F.3d 1020, 1027 (9th Cir. 1999); Swanson v. Powers, 937 F.2d 965,
969 (4th Cir. 1991).
E. The Municipal Court’s Jurisdiction
Barnes argues that the Cedar Park municipal court had no
jurisdiction to pursue the terroristic threat charge. According
to the Texas statutes, the jurisdiction of the municipal courts
does not extend to criminal cases involving offenses punishable
by imprisonment. See TEX. GOV’T CODE ANN. § 29.003 (Vernon 1988 &
Supp. 2003). Violation of the terroristic threat statute is,
depending upon which subsection is violated, at least a Class B
misdemeanor, see TEX. PENAL CODE ANN. § 22.07(b), which means that
it is potentially punishable by imprisonment, see id. § 12.22.
Thus, a terroristic threat charge apparently could not be
prosecuted in the Cedar Park municipal court.
21
Barnes was not prosecuted in the municipal court, nor indeed
was she ever prosecuted at all.11 Thus, it is not immediately
clear why the jurisdiction of the municipal court is at all
relevant. We take Barnes to suggest that the court’s
jurisdiction is relevant to the availability of the absolute
judicial immunity claimed by some of the defendants. As the
Supreme Court has said, judicial immunity does not shield
otherwise “judicial” acts that are “taken in the complete absence
of all jurisdiction.” Mireles v. Waco, 502 U.S. 9, 12 (1991)
(per curiam).
We believe that Barnes’s arguments concerning the municipal
court’s jurisdiction conflate two separate questions. The fact
that the municipal court does not have jurisdiction to hear a
prosecution for a violation of the terroristic threat statute
does not mean that the court’s judges, who are also designated as
magistrates under Texas law, have no power as magistrates to
issue an arrest warrant for such an offense. Indeed, Texas law
suggests the opposite, for magistrates have the power and duty to
issue such process. See TEX. CODE CRIM. PROC. ANN. arts. 2.09,
2.10, 6.02, 7.01, 15.03 (Vernon 1977 & Supp. 2003). We thus find
11
Barnes at one point suggests that the absence of an
indictment or information means that her arrest was illegal and
without all jurisdiction. This is not correct, for an arrest
requires only a warrant or probable cause. The case cited by
Barnes explains that proper charging instruments are necessary to
confer jurisdiction to try a criminal case, not to effect an
arrest. See Cook v. State, 902 S.W.2d 471 (Tex. Crim. App.
1995).
22
Barnes’s arguments relating to the municipal court’s jurisdiction
to be without merit.
F. Illegal Search and Arrest
Barnes’s complaint alleged that her arrest on June 13, 2000,
was illegal in that Officer Richards did not possess a valid
arrest warrant; moreover, she claims, he conducted a search of
her office and effects without a search warrant. The district
court found that there could be no liability for the arrest
because Officer Richards had acted pursuant to a facially valid
arrest warrant. As to the alleged illegal search, the court
found that Barnes had offered no competent summary judgment
evidence to overcome Officer Richards’s sworn denials. On
appeal, Barnes repeats her assertions of illegality.
We agree with the district court’s analysis. Viewing the
summary judgment evidence in the light most favorable to Barnes,
the most the evidence shows is that Officer Richards lacked the
actual arrest warrant but instead had received a faxed copy of
documents from the Cedar Park police indicating that Cedar Park
held a warrant for Barnes’s arrest. Contrary to Barnes’s
suggestions, there is no requirement that an officer possess the
actual warrant; an arrest is legal if the officer acts under the
authority of a warrant of which he or she has reliable knowledge.
See United States v. McDonald, 606 F.2d 552, 553-54 (5th Cir.
1979) (per curiam); see also Case v. Kitsap County Sheriff’s
23
Dep’t, 249 F.3d 921, 930 (9th Cir. 2001). Texas law specifically
provides that the arresting officer need not have the warrant in
his possession. See TEX. CODE CRIM. PROC. ANN. art. 15.26; Cook v.
State, 470 S.W.2d 898, 899 (Tex. Crim. App. 1971). There is no
genuine dispute over the warrant’s apparent validity.
As to Barnes’s allegations that Officer Richards (and
possibly unnamed others) engaged in illegal searches and
ransacked her home, office, and vehicles, we agree with the
district court that Barnes failed to demonstrate the existence of
triable material facts. Officer Richards’s affidavit, appended
to his motion for summary judgment, denied conducting such
searches, except for looking in Barnes’s purse at the time of
arrest. Once Richards satisfied his initial burden of showing
the absence of any genuine issue of material fact, Barnes could
survive summary judgment only by designating specific facts in
the record that would create genuine issues for trial. Celotex,
477 U.S. at 324. Barnes did not produce such specific record
facts. Her affidavit does state, without elaboration, that
Officer Richards searched her person, belongings, and
surroundings at the time she was arrested. Although the absence
of detail makes it difficult to reach a firm conclusion, the
search she seems to describe would appear to be legal. See
United States v. Johnson, 846 F.2d 279, 281-84 (5th Cir. 1988)
(permitting the warrantless search of a closed briefcase incident
to arrest). There are of course important limitations on the
24
proper scope of a search incident to an arrest, but Barnes’s
evidence, if credited, does not provide any details that would
give us a basis to say that those bounds were overstepped. As
to her allegations that more expansive (and clearly illegal)
searches and ransacking took place while she was incarcerated,
her only evidence is her affidavit’s reassertion of the vague
allegations contained in her complaint.12 Such vague and
conclusory assertions cannot defeat a properly supported motion
for summary judgment. Bridgmon v. Array Sys. Corp., 325 F.3d
572, 577 (5th Cir. 2003).
G. Detention in Williamson County Jail
Barnes asserts that she was kept in jail for seven hours
after she posted bond and that Williamson County officials
subjected her to abuse during and after her detention. These
events serve as the predicate for several of her federal and
state claims.
None of the employees responsible for these particular acts
of asserted misconduct has been named as a defendant in this
12
Her affidavit’s most detailed account of the matter
would appear to be the following statement: “During my
incarceration, my home and vehicles were also searched and
ransacked. These defendants clearly took advantage of the
illegal incarceration to conduct an illegal search. This is
perhaps why I was wrongfully and illegally detained for an
additional seven hours after my bond was posted and my magistrate
warning waived.” The reader is left in the dark as to the
personal knowledge, if any, that supports Barnes’s belief.
25
case;13 only the county is a defendant. The district court
granted the county’s motion for summary judgment as to all
claims. With respect to Barnes’s claims under § 1983, the
district court first pointed out that the county cannot be held
liable on a theory of respondeat superior; instead, it is liable
only for wrongs attributable to official policy. See Monell v.
Dep’t of Soc. Servs., 436 U.S. 658, 691-95 (1978); Gonzalez v.
Ysleta Indep. Sch. Dist., 996 F.2d 745, 753-54 (5th Cir. 1993).
The district court then concluded that Barnes had not presented
any competent evidence that her alleged injuries had been the
result of an official policy or custom.
With regard to Barnes’s state law claims, the district court
pointed out that local government entities enjoy immunity under
Texas law except to the extent that the state legislature has
expressly waived it. See Guillory v. Port of Houston Auth., 845
S.W.2d 812, 813 (Tex. 1993). In enacting the Texas Tort Claims
Act, TEX. CIV. PRAC. & REM. CODE ANN. §§ 101.001-.109 (Vernon 1997 &
Supp. 2003), the legislature effected a limited waiver of
immunity. This waiver does not, however, extend to intentional
torts. See id. § 101.057; City of Hempstead v. Kmiec, 902 S.W.2d
118, 122 (Tex. App.–-Houston [1st Dist.], 1995, no writ). While
13
Some employees of Williamson County were dismissed from
the suit for lack of proper service of process. Barnes sought to
add other Williamson County employees in her Fifth Amended
Complaint, but, as discussed above, the district court denied her
request to do so.
26
some of the many causes of action listed in Barnes’s complaint
announce themselves as negligence claims, the harms she suffered
at the hands of Williamson County’s employees–-illegal detention
and harassment--are in fact claims sounding in intentional tort.
The district court pointed out that a plaintiff cannot avoid the
bar of governmental immunity simply by describing essentially
intentional conduct as an act of negligence. See Tex. Dep’t of
Pub. Safety v. Petta, 44 S.W.3d 575, 580 (Tex. 2001); Holland v.
City of Houston, 41 F. Supp. 2d 678, 712-13 (S.D. Tex. 1999).
In the section of her appellate brief devoted to this topic,
Barnes recites the factual allegations relating to her detention
and then declares that the district court erred in granting
Williamson County’s motion for summary judgment. She does not,
however, identify how the district court might have erred. Nor
does she direct us to any summary judgment evidence that would
produce a genuine issue of material fact necessitating resolution
at trial. Barnes’s inadequate presentation of the argument could
properly be held to effect a waiver of the issue. See FED. R.
APP. P. 28(a)(9) (requiring that an argument contain “contentions
and the reasons for them, with citations to the authorities and
parts of the record on which the appellant relies”); Jason D.W.
v. Houston Indep. Sch. Dist., 158 F.3d 205, 210 n.4 (5th Cir.
1998).
Nonetheless, we have conducted our own review of Williamson
County’s motion for summary judgment and Barnes’s response,
27
together with the evidence provided in support of each. We
conclude that Barnes did not produce evidence sufficient to
withstand Williamson County’s motion for summary judgment. In
particular, regarding her federal claims, Barnes failed to show
that the wrongs she allegedly suffered were the result of county
policy. Her affidavit includes assertions that the county
maintains illegal policies, but such conclusory statements are
insufficient to withstand summary judgment. See Spiller v. City
of Texas City, Police Dep’t, 130 F.3d 162, 167 (5th Cir. 1997).
Barnes’s most probative evidence was an affidavit from a former
Williamson County sheriff’s deputy, which details some of the
department’s inner workings. Viewing the affidavit in the proper
summary judgment light, it paints a dim portrait of the
department and arguably evinces the existence (or at least former
existence) of several malign informal practices. The affidavit
does not, however, reveal any personal knowledge of the existence
of policies that bear on the harms suffered by Barnes. Indeed,
the closing paragraphs of the affidavit suggest that the
particular wrongs identified by Barnes–-being held without a
valid warrant, being held after posting bond, and so forth–-would
violate department policy. In sum, we agree with the district
court that Barnes did not produce specific and competent evidence
that would create a genuine issue of fact with respect to crucial
elements of her federal claims.
28
Turning to Barnes’s state claims, her response to Williamson
County’s motion for summary judgment did not explain how her
claims could survive, given that the Texas Tort Claims Act does
not waive governmental immunity for officials’ intentional torts.
See TEX. CIV. PRAC. & REM. CODE ANN. § 101.057. We agree with the
district court that the facts surrounding Barnes’s claims against
Williamson County sound in intentional tort. Since Barnes does
not allege any conduct that is factually distinct from the
conduct that supports the intentional tort claims, the fact that
her complaint includes generalized allegations of negligence on
the part of all defendants is insufficient to avoid Williamson’s
immunity defense. See Petta, 44 S.W.3d at 580.
H. Defamation Claims Against Davis
While Barnes wishes to mount a general appeal of all aspects
of the district court’s grant of defendant Davis’s motion for
summary judgment, the only issue actually argued in her brief is
her defamation claim. Accordingly, this is the only point we
shall address.
Barnes’s complaint contains some general allegations that
Davis (along with others) published defamatory material to
various unspecified persons at various unspecified times; the
most specific allegation relating to the defamation claim is that
Davis sent defamatory letters or faxes to Barnes’s office in the
fall of 2000. Davis moved for summary judgment, claiming that
29
Barnes had no evidence that any defamatory statements were
published to third parties; Davis claimed, moreover, that any
defamatory statements were privileged by virtue of being made in
connection with judicial proceedings then pending in the state
court. (As we noted earlier, Barnes had sued Williamson County
before, and Davis has at various times represented the county and
its employees.)
Barnes’s response to Davis’s motion for summary judgment
failed even to identify the particular document(s) or
statement(s) alleged to be defamatory. This failure to identify
the factual basis of her claim would itself have justified
granting Davis’s motion for summary judgment. See Celotex, 477
U.S. at 322-23. By examining the materials appended to Davis’s
motion for summary judgment, we believe we have been able to
identify the statements that Barnes believes are defamatory. The
possibly defamatory items consist of several letters that Davis
faxed or mailed to Barnes’s office in the fall of 2000 in
connection with her state suit against Williamson County. Some
of these letters were apparently copied to other persons involved
in the case, including the judge. Barnes claims that the letters
to her office were viewed by her office staff, but she did not
provide names of any employees or offer affidavits from them.
30
The possibly defamatory items express Davis’s view that, based
upon her conduct, Barnes may be mentally disturbed.14
The district court granted Davis’s motion for summary
judgment, noting first that Barnes had failed even to identify
Davis’s allegedly defamatory language. After assuming for the
sake of argument that Davis had sent defamatory material to
Barnes’s office, the district court found no evidence of
publication to a third party. If Barnes’s employees had seen the
letters, the court remarked, it would have been a simple matter
to prove it with an affidavit from one of them.
Barnes argues on appeal that there was sufficient evidence
of publication, inasmuch as the letters indicate on their face
(in the “cc:” field) that they were copied to third parties.
Assuming that there was adequate evidence of publication,
Barnes’s claim still fails. Under Texas law, statements made in
the course of judicial proceedings are absolutely privileged from
14
Davis also expresses this view in a letter to the state
bar disciplinary committee in connection with a grievance that
Barnes had filed against him. It is not clear that this item
falls within the allegations in Barnes’s complaint, as it was
sent in February 2001. The only remotely specific allegations in
Barnes’s complaint refer to letters sent to her office in the
fall of 2000. Barnes has, however, alluded at times to Davis’s
conduct in the grievance proceedings. Even if we assume that
this letter is properly a part of the case, any defamation claims
based upon it must fail because of the absolute privilege that
shields all statements made in judicial and quasi-judicial
proceedings. Proceedings before the state bar’s grievance
committee have been held to qualify for that absolute privilege.
See Odeneal v. Wofford, 668 S.W.2d 819, 820 (Tex. App.–-Dallas,
1984, writ ref’d n.r.e.).
31
defamation liability, regardless of the negligence or even malice
with which they are made. See, e.g., James v. Brown, 637 S.W.2d
914, 916 (Tex. 1982). The privilege extends even to
communications made by an attorney to persons who are not
directly involved in the proceedings, as long as the
communications are related to the attorney’s representation of a
client in pending or proposed judicial proceedings. See Watson
v. Kaminski, 51 S.W.3d 825, 827 (Tex. App.–-Houston [1st Dist.]
2001, no pet.); Thomas v. Bracey, 940 S.W.2d 340, 342-44 (Tex.
App.–-San Antonio 1997, no writ). This privilege was one basis
of Davis’s motion for summary judgment. There does not appear to
be any indication--and Barnes certainly presented no competent
summary judgment evidence–-that the privilege does not cover the
statements at issue here, which were made in relation to then-
pending litigation.
I. Sanctions Order
Williamson County sought sanctions of over $8,000 for
expenses incurred in responding to various motions and in
connection with Barnes’s failure to appear at her duly noticed
deposition on May 20, 2002. In an order dated August 16, 2002,
the district judge awarded sanctions in the amount of $799, which
he found to be a reasonable estimate of the expenses directly
caused by Barnes’s failure to appear at her deposition. The
32
court denied Williamson County’s motion for sanctions in all
other respects.
Barnes complains of both the procedure and the resulting
order. Barnes had filed a forty-page response to the motion for
sanctions, accompanied by a motion to exceed the usual page
limits. The district court denied the motion to exceed the page
limits and ordered Barnes to file a ten-page response to the
motion for sanctions. Barnes asserts on appeal that she never
received notice of that order, and thus she did not know that her
original, lengthy response had been rejected. This, she
suggests, violated due process. Yet Barnes’s assertion that she
was not given notice of the rejection of her original response is
impossible for us to verify. In any event, it is the type of
argument that should have been made in the first instance to the
district court, such as in a motion to reconsider.15
If a party fails to attend a deposition, the court “shall”
order that party to pay the opposing party’s expenses unless the
failure to attend was “substantially justified.” FED. R. CIV. P.
37(d). In explaining that Barnes’s failure to appear was not
15
Barnes repeatedly points out that the district judge
and magistrate judge decided many motions, including the motion
for sanctions, without holding a live hearing. But due process
requires only a meaningful opportunity to present one’s position,
and there is no requirement to hold a live hearing on the types
of motions that the lower court decided on the papers. See,
e.g., Fahle v. Cornyn, 231 F.3d 193, 196 (5th Cir. 2000);
Merriman v. Sec. Ins. Co. of Hartford, 100 F.3d 1187, 1191-92
(5th Cir. 1996).
33
substantially justified, the district court noted, among other
factors, that she had not filed a motion for a protective order.
Barnes argues vigorously on appeal that she had in fact filed a
motion for a protective order before the deposition. From our
review of the docket and the record, it indeed appears that she
had filed, on May 17, a combined motion to quash and motion for a
protective order. Nonetheless, the mere act of filing a motion
for a protective order does not relieve a party of the duty to
appear; the party is obliged to appear until some order of the
court excuses attendance. See King v. Fidelity Nat’l Bank of
Baton Rouge, 712 F.2d 188, 191 (5th Cir. 1983) (per curiam);
Hepperle v. Johnston, 590 F.2d 609, 613 (5th Cir. 1979); Goodwin
v. City of Boston, 118 F.R.D. 297, 298 (D. Mass. 1988). Barnes
had received notice of the deposition on May 8, yet she did not
file her motion for a protective order until May 17, the Friday
preceding her Monday morning deposition. Given the timing,
Barnes could hardly have expected in good faith to receive a
court order excusing her attendance. Therefore, we cannot say
that the district court abused its discretion in finding that
Barnes’s failure to appear was not substantially justified.
IV. CONCLUSION
For the foregoing reasons, the district court’s judgment and
order of sanctions are AFFIRMED. Appellees’ motion to file a
brief in response to Barnes’s reply brief is DENIED as moot.
34