Rolen v. City Brownfield TX

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT May 30, 2006
Charles R. Fulbruge III
Clerk
No. 04-11469
Summary Calendar
APRIL RENEA ROLEN; KARLA ROLEN CLARK; L.D. CLARK,
Plaintiffs-Appellants,
versus
CITY OF BROWNFIELD, TEXAS; BROWNFIELD POLICE DEPARTMENT;
RAFAEL TORRES; JOHN DOES,
Defendants-Appellees.
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Appeal from the United States District Court
for the Northern District of Texas
USDC No. 5:03-CV-304
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Before BARKSDALE, STEWART, and CLEMENT, Circuit Judges.
PER CURIAM:*
Plaintiffs, April Renea Rolen, Karla Rolen Clark, and L.D.
Clark (the plaintiffs) appeal the dismissal on summary judgment
of their 42 U.S.C. § 1983 claims against Officer Rafael Torres,
the Brownfield Police Department (BPD), and the City of
Brownfield (the City). Finding no error, we affirm.
We review the district court’s grant of summary judgment de
novo, under the standard set forth in FED. R. CIV. P. 56. See
Cousin v. Small, 325 F.3d 627, 637 (5th Cir. 2003). With respect
*
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this opinion should not be published and is not precedent except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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to the defendants’ claims of qualified immunity, the plaintiffs
must show that a government official violated a constitutional
right that was clearly established at the time of the alleged
violation and that the official’s actions were objectively
unreasonable. Eugene v. Alief Indep. Sch. Dist., 65 F.3d 1299,
1305 (5th Cir. 1995). With respect to the liability of the City,
the plaintiffs must demonstrate both that a municipal employee
violated a clearly-established constitutional right and that the
violation was the result of a municipal policy or custom.
Olabisiomotosho v. City of Houston, 185 F.3d 521, 528-29 (5th
Cir. 1999).
We are mindful of the plaintiffs’ pro se status, and we hold
a pro se plaintiff’s brief to a less stringent standard than a
brief filed by counsel. See Grant v. Cuellar, 59 F.3d 523, 524
(5th Cir. 1995). Nevertheless, even pro se plaintiffs must brief
issues to preserve them and comply with the Federal Rules of
Appellate Procedure. Id.At the outset we consider whether the BPD may be sued. The
district court did not err in dismissing the claims against the
BPD because it was not a juridical entity capable of being sued.
See Darby v. Pasadena Police Dep’t, 939 F.2d 311, 313 (5th Cir.
1991). With Officer Torres and the City as the only remaining
defendants, we consider the merits.
The district court correctly determined that there was no
violation of a clearly-established constitutional right with
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respect to the plaintiffs’ claims that the defendants violated
their constitutional rights by using April Rolen as an undercover
informant in a drug operation while she was a minor and without
her parents’ consent. Even accepting as true that the officers
knew or should have known that April was a minor and that her
parents had not consented, the due process right of family
integrity implicated by these actions is nebulous and undefined.
Thus, we cannot say that a reasonable officer would have
understood that such actions violated this particular right.
Hodorowski v. Ray, 844 F.2d 1210, 1217 (5th Cir. 1988). Although
the plaintiffs argue that various defendants perjured themselves
regarding the use of April in the drug sting, whether the
defendants’ declarations were incorrect does not affect the
determination that, as a matter of law, there was no clearly-
established right.
In the district court, the plaintiffs alleged various
instances of harassment of April Rolen. They do not brief this
issue on appeal and the issue may, therefore, be deemed
abandoned. See Yohey v. Collins, 985 F.2d 222, 224-25 (5th Cir.
1993). The claim concerning the unlawful arrest of April Rolen
and the impounding of her car likewise is not briefed on appeal
and may, therefore, be deemed abandoned. Id.The plaintiffs’ contention that L.D. Clark was not allowed
to present various complaints at a City Council meeting is
without merit. The audiotape of that meeting shows that Clark
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was afforded an opportunity to present his assertions. The
request that he “wrap up” his remarks due to the council’s need
to address other business did not infringe on his constitutional
rights because it was not based on the content of the speech.
See Heffron v. International Soc. for Krishna Consciousness,
Inc., 452 U.S. 640, 647 (1981).
The plaintiffs next assert that the defendants violated
their rights by failing to investigate an alleged sexual assault
on April Rolen. Failure to investigate or prosecute an offense
does not give rise to § 1983 liability. See Piotrowski v. City
of Houston, 237 F.3d 567, 582 (5th Cir. 2001). This claim is
without merit.
The plaintiffs also argue that the City failed to conduct an
investigation of the use of April in the drug sting. Even if the
failure to investigate constituted some actionable misconduct,
this single failure by the City to investigate does not give rise
to liability as it does not show a policy or custom. See Fraire
v. City of Arlington, 957 F.2d 1268, 1278 (5th Cir. 1992).
The plaintiffs next assert that L.D. Clark was unlawfully
arrested pursuant to an invalid arrest warrant for a violation of
an ordinance regarding weeds. However, this claim is
contradicted by Clark’s own statements that the officer did not
arrest him as well as by the uncontroverted declaration of the
officer that the warrant was not served and that Clark was not
arrested. Even if Clark was detained while the officer verified
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the information in the warrant, there is no evidence that such
detention was unreasonable. See United States v. Jordan, 232
F.3d 447, 448 (5th Cir. 2000) (“An officer may, consistent with
the Fourth Amendment, conduct a brief investigatory stop when the
officer has a reasonable, articulable suspicion that criminal
activity is afoot.”); Duckett v. City of Cedar Park, 950 F.2d
272, 280 (5th Cir. 1992)(arrest pursuant to facially valid
warrant not unconstitutional although warrant later was
determined to be invalid). Accordingly, the district court
properly granted summary judgment on this claim.
The plaintiffs argue that the district court failed to give
their pleadings the liberal construction required by their pro se
status. This contention is without merit. The district court
engaged in a lengthy and detailed analysis of the plaintiffs’
numerous claims, broadly construing their vague claims as
asserting specific constitutional violations. As to any
procedural errors by the plaintiffs in opposing the summary
judgment motion, even pro se litigants must comply with the
Federal Rules of Civil Procedure and present proper summary
judgment evidence. See Gordon v. Watson, 622 F.2d 120, 123 (5th
Cir. 1980).
The district court did not abuse its discretion in denying
the request that counsel be appointed for April Rolen. This case
presents no exceptional circumstances warranting such
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appointment. See Richardson v. Henry, 902 F.2d 414, 417 (5th
Cir. 1990).
The plaintiffs sought leave to amend to add a number of
defendants on their claims relating to the drug sting. The
district court’s denial of the motion to amend was not an abuse
of discretion, because any amendment to add defendants on a claim
that had no merit would have been futile. See Martin’s Herend
Imports, Inc. v. Diamond & Gem Trading United States of Am. Co.,
195 F.3d 765, 771 (5th Cir. 1999).
Finally, the plaintiffs move to supplement the record on
appeal with 17 exhibits. The first 14 exhibits were already part
of the district court record. The remaining three exhibits,
declarations by each of the plaintiffs, were not submitted to the
district court. Accordingly, they may not be considered on
appeal. See Topalian v. Ehrman, 954 F.2d 1125, 1131 n.10 (5th
Cir. 1992).
For the foregoing reasons, the judgment of the district
court is affirmed. The motion to supplement the record on appeal
is denied. We do not reach the plaintiffs’ request that this
case be assigned to a different judge on remand.
AFFIRMED; MOTION TO SUPPLEMENT DENIED.