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https://www.courtlistener.com/api/rest/v3/opinions/491942/
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824 F.2d 978
Unpublished dispositionNOTICE: Federal Circuit Local Rule 47.8(b) states that opinions and orders which are designated as not citable as precedent shall not be employed or cited as precedent. This does not preclude assertion of issues of claim preclusion, issue preclusion, judicial estoppel, law of the case or the like based on a decision of the Court rendered in a nonprecedential opinion or order.Joe D. JORDAN, Petitioner,v.UNITED STATES POSTAL SERVICE, Respondent.
Appeal No. 86-1728.
United States Court of Appeals, Federal Circuit.
May 19, 1987.
Before MARKEY, Chief Judge, BENNETT, Senior Circuit Judge, and SMITH, Circuit Judge.
PER CURIAM.
DECISION
1
Petitioner appeals his demotion and reassignment by the United States Postal Service, which were upheld by a final decision of the Merit Systems Protection Board on July 23, 1986, Docket No. PH07528610130, when it declined review of the presiding official's decision of March 18, 1986. We affirm.
OPINION
2
Effective November 23, 1985, petitioner was demoted from his position as postmaster, South Hill, Virginia, to that of distribution clerk and was reassigned to the Petersburg, Virginia, postal facility. The agency action brought against him was based on several specifications of sexual harassment of employees at the post office and conduct unbecoming a postal employee. After a hearing, the presiding official held that the misconduct charged in the majority of specifications was sustained by a preponderance of the evidence and that petitioner's demotion and reassignment were warranted to promote the efficiency of the service. 5 U.S.C. Sec. 7513 (1982). In reaching this decision, the presiding official made credibility determinations which must be sustained on the record before the court. None of the defenses was found sufficient to mitigate the penalty imposed. We have reexamined those defenses, which are treated in detail in the board's opinion, and find no demonstrable prejudicial errors in the proceeding. Our scope of review is limited. Petitioner has not met his burden of showing that the action taken against him was arbitrary, capricious, an abuse of discretion, not supported by substantial evidence, or otherwise not according to law. 5 U.S.C. Sec. 7703(c) (1982). See Hayes v. Department of the Navy, 727 F.2d 1535 (Fed.Cir.1984).
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752 N.W.2d 33 (2008)
M.B. CONST., INC.
v.
MID-STATES EXPRESS, INC.
No. 07-0381.
Court of Appeals of Iowa.
February 27, 2008.
Decision without published opinion. Affirmed.
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57 N.Y.2d 116 (1982)
In the Matter of the Claim of Grace Valvo, Respondent. Philip Ross, as Industrial Commissioner, Appellant.
In the Matter of the Claim of Debra Loll, Respondent. Philip Ross, as Industrial Commissioner, Appellant.
In the Matter of the Claim of Josephine Polvino, Respondent. Philip Ross, as Industrial Commissioner, Appellant.
Court of Appeals of the State of New York.
Decided September 14, 1982.
Robert Abrams, Attorney-General (Iris A. Steel of counsel), for appellant in the first, second and third above-entitled matters.
Stephen S. Joy for respondent in the first above-entitled matter.
Andrew M. Rothstein for respondent in the second above-entitled matter.
Paul M. Aloi for respondent in the third above-entitled matter.
Chief Judge COOKE and Judges JASEN, JONES, FUCHSBERG and MEYER concur; Judge GABRIELLI taking no part.
*119WACHTLER, J.
In these three cases recipients of unemployment insurance failed to report that they had performed occasional services of a business nature for friends or family members during periods of claimed unemployment. The agency found that these services constituted employment, that claimants had therefore made false statements of unemployment and that the statements were wilfully made. In each case a penalty was imposed and the claimants were also directed to repay the benefits received.
On three separate appeals the Appellate Division, Third Department, modified by annulling the penalty and repayment provisions after concluding that proof of the element of wilfulness was lacking. The Appellate Division also rejected the agency's contention that a portion of the benefits are recoverable pursuant to subdivision 4 of section 597 of the Labor Law on the theory that claimant had made a false statement unintentionally. The agency appeals on the basis of the modifications.[1]
VALVO CASE
Claimant, Grace Valvo, is employed by Tambe Oil, which delivers heating oil to homes and a few businesses during the winter months. From late spring to early fall it is dormant. The corporation is owned and operated by Anthony Tambe, the father-in-law of one of the claimant's close friends. Mr. Tambe was formerly employed as a truck driver. He went into business for himself in September, 1976. The business presently consists of a truck and a garage with a small office in the garage. The owner personally delivers the oil, and in the beginning also attended to the clerical matters. However, he had so much difficulty balancing his checking account that his credit rating was soon impaired and he was on the verge of going out of business. When he mentioned this to his daughter in claimant's presence, claimant volunteered to help. From October, 1976 to November, 1977 claimant wrote his checks and balanced the checkbook as a favor, without compensation. During this period she was receiving unemployment benefits.
*120In November, 1977 Mr. Tambe hired claimant as a secretary to write checks, send out the bills, record all financial transactions and answer the phone at the office. In this capacity she worked 40 hours a week at the office. During the summer months in 1978 and 1979 she was officially laid off and collected unemployment benefits. However, if a bill had to be paid for monthly utilities or outstanding loans Mr. Tambe would call claimant and ask her to write a check. He would then pick it up at her home, sign it and mail it. Claimant received no compensation for these services.
In June, 1980 the agency informed claimant that her uncompensated check-writing activities constituted employment under the Labor Law,[2] that she had therefore made false statements when she claimed to be unemployed during the off-season, and also during the period she wrote the company's checks on a volunteer basis before she was hired in November, 1977. It further concluded that the statement had been wilfully made and that claimant should therefore be penalized by forfeiting 664 days of future eligibility and must also repay all benefits received in the amount of $6,019.
Claimant requested a hearing which was held in July, 1980. After the hearing the administrative law judge concluded that the initial determination assessing a penalty and requiring repayment of benefits should be set aside primarily because there was no evidence of fraud or wilful misrepresentation on claimant's part. He stated: "While claimant did perform check writing functions for this employer during the period prior to the time when she went on the payroll in November of 1977 and also during the off season of 1978, claimant could reasonably have believed that there was no employer employee relationship since she was not reporting to the employer's establishment during the periods when she was writing such checks and she was performing no other services. This is especially the case in the period prior to her going on the *121 payroll in November of 1977. With respect to the off season of 1978, claimant's activities were so substantially different from her regular work assignments that even here she could reasonably have believed that she was not performing as an employee * * * In addition, she was clearly not self employed and since the amount of time required to write the checks was minimal the activity of writing the checks as such did not establish a lack of total unemployment."
The appeal board reversed the decision of the administrative law judge and reinstated the initial determination. The board summarily concluded that claimant's weekly certifications of unemployment "were false and known by her to be false when made" and therefore constituted wilful misrepresentations. The board also found that claimant's statements were false in fact because "claimant performed substantial services for her employer of a similar nature to those she performed when concededly in employment".
Claimant appealed to the Appellate Division to have the board's determination set aside. In support of its determination the agency claimed that there was substantial evidence of wilfulness and that it was therefore authorized to impose the penalty and require repayment pursuant to section 594 of the Labor Law.[3] In the alternative the agency urged that pursuant to subdivisions 3 and 4 of section 597 of the Labor Law, it could recover a portion of the benefits (i.e., those paid during the year preceding discovery of the overpayment) whenever the claimant has made a false statement of unemployment even unintentionally.[4]
*122The Appellate Division unanimously modified by reversing that portion of the determination which imposed the penalty and ordered repayment of benefits. The court accepted the board's determination that claimant's check-writing activities constituted employment but found nothing in the record to support the board's determination of wilfulness. With respect to the board's right to recover a portion of the benefits pursuant to subdivisions 3 and 4 of section 597 of the Labor Law on the theory that she had made a false statement the court held that "the term `false statement' in the statute refers to a false factual statement" and not to an erroneous conclusion of law. (83 AD2d, at p 346.) In this case the court found that "the requirement that claimant weekly `report and certify as to his unemployment' (12 NYCRR 473.2 [a]) obligated claimant to draw a legal conclusion whether her uncompensated check-writing activities constituted employment within the meaning of the Labor Law rather than provide factual data". (83 AD2d, at p 347.) The court distinguished our recent decision in Matter of Maguire (Ross) (54 N.Y.2d 965) on the ground that the petitioner's activities in that case obviously constituted employment.
LOLL CASE
In March, 1978 claimant, Debra Loll, was laid off from her job as a clerk cashier at Stop & Go in Elmira. She was rehired in September of that year. In the interim she collected unemployment benefits. At an unemployment interview on July 7, 1978 she had stated that she occasionally helped out at her father's drugstore, but received no compensation for these services. Toward the end of the month the agency sent her a letter warning her that any services performed for her father at his store would constitute employment even if she did not receive any compensation. On August 8, the manager of the unemployment *123 office who was a regular customer at the drugstore saw the claimant behind the counter.
In October the agency made an initial determination that petitioner was ineligible to receive benefits for two days out of each week during the period of claimed unemployment, representing the days she helped her family at the drugstore. Her weekly certifications of unemployment were characterized as false and wilful misrepresentations. As a result claimant was penalized 96 effective days and was directed to repay $564 representing the benefits she received on the days she was employed at her father's drugstore.
Claimant demanded a hearing which was held in February of 1979. At the hearing she testified that she went to her father's store nearly every day during the period she claimed unemployment, so that she could borrow his car or have a family member babysit for her three-year-old son while she looked for a job. On occasion she would take care of a customer or deliver a prescription if her father or brother were busy or wanted to take a break. She usually only helped out for a few minutes one or two days a week during the evening or on a Saturday and on rare occasions worked for a few hours. These activities ceased after being warned of the consequences in July. However, she continued her daytime visits and during one of them might have assisted her family at the store for a few minutes because she had done so automatically throughout her life. She received no compensation for the help she provided at the store.
At the conclusion of the hearing the administrative law judge held that claimant's activities at her father's store constituted employment. He also stated that "the record is clear that the claimant was not candid with the local office and did not advise them of her activities". Thus he sustained the initial determinations. The appeal board affirmed adopting both the findings of fact and opinion of the administrative law judge.
The case was heard by the Appellate Division in November, 1980, a year before its decision in the Valvo case. In a brief memorandum the court held that the record supported *124 the board's finding that claimant had made false statements but not its finding of wilfulness. The court modified by reversing so much of the agency's determination as assessed a penalty of 96 effective days.
At the time of its decision in Valvo the Appellate Division granted reargument in this case. In another brief memorandum, relying upon Valvo, the court further modified by reversing so much of the agency's determination as directed claimant to repay benefits received.
POLVINO CASE
From 1974 to 1977 claimant Josephine Polvino was intermittently employed by a small construction company owned and operated by her two sons, one of whom resides at home with his parents. The company does general construction work but specializes in paving driveways in the summer and removing snow in the winter. The company's office is located in a trailer on property where the equipment is stored. However, company business is frequently conducted at claimant's residence.
Claimant performed clerical duties at the office of a general and unskilled nature including answering phones, writing checks and keeping some company records. She was laid off and collected unemployment benefits on several occasions: March 4 to July 14, 1974; December 23, 1974 to June 13, 1976, and August 8, 1977 to May 14, 1978. According to claimant and her sons this was due to a lack of work. However during these periods she continued on occasion to answer phone calls from customers, write checks and keep some company records at her residence without compensation.
In March of 1979 the agency sent claimant a notice of initial determination stating that she had been found to be ineligible for unemployment benefits during the periods of claimed unemployment listed above because she had continued to perform "services for Polvino Construction Corporation". She was directed to make repayment in the amount of $8,834. The agency also imposed a penalty of 208 effective days for wilful misrepresentation "because you failed to divulge your association and activities for Polvino Construction Company".
*125Claimant demanded a hearing at the conclusion of which the administrative law judge sustained the initial determination. He noted that claimant had been employed by her sons' company where the services she performed were somewhat vague. He stated: "In a situation where a claimant is employed by a closely held corporation whose principal officers and shareholders are related to her, the closest scrutiny must be given to a claim for benefits. In the instant case the pattern of her claims over several years makes it appear obvious that the employer controlled her periods of employment. Because of the control exercised over the periods of her employment, the undersigned cannot accept claimant's eligibility for benefits during these several periods when, by her own admission, claimant performed some services for the corporation."
That decision was in turn affirmed by the appeal board which adopted the findings of fact and opinion of the administrative law judge.
The Appellate Division modified the agency's determination by reversing the penalty and repayment provisions. In its memorandum the court held that there was substantial evidence to support the board's determination that petitioner was unavailable for employment. The court also found no "reason for disturbing the board's determination that claimant was not totally unemployed". The court then stated: "We are of the opinion, however, that there is insufficient evidence to support the board's determination on the issue of wilfull misrepresentation. Claimant's activities did not obviously constitute employment as the situation was found to be in Matter of Maguire (Ross) (54 N.Y.2d 965, supra). Although claimant may be found to have been employed in the technical sense of the Labor Law, there is no evidence of wilfulness in her certifications to total unemployment on her weekly reports. Consequently, the imposition of a forfeiture of effective days and the recovery of overpayments pursuant to section 594 of the Labor Law are not warranted in the present case (see Matter of Valvo [Ross], supra; Matter of Smalt [Ross], 82 AD2d 958). In addition, under the circumstances presented herein, there may be no recovery of a portion of the benefits pursuant to *126 subdivision 4 of section 597 of the Labor Law (see Matter of Valvo [Ross], supra)." (85 AD2d, at p 807.)
The order of the Appellate Division should be affirmed in the first case (Valvo) and reversed in the other two (Loll and Polvino).
Initially we note that at this stage no one challenges the agency's determination that the petitioners' activities technically constitute employment within the meaning of the statute. The appeals are limited to the following issues: (1) did the petitioners make false statements when they stated that they were unemployed and (2) did they act wilfully. In addition the agency concedes that in order to sustain a finding of wilfulness the evidence must show that the petitioners knew that their actions constituted employment.
The problem is that the agency's interpretation of the statute defining employment (Labor Law, § 522) although rational, does not reflect the common understanding of employment. As a result laymen, particularly unskilled laymen who undoubtedly represent the majority of claimants for unemployment benefits, may not realize that occasionally helping a friend or relative may constitute employment even though they are not paid for it. The agency claims that its information booklet provides a kind of constructive notice when it states: "You are considered employed on any day when you work even an hour or less in self-employment, on a free lance basis, or for someone else. It makes no difference whether * * * you get paid for that day". The agency, however, has omitted the next sentence which states: "For example, work on a straight commission basis is employment even though you may not receive the commission until some time later or make no sale at all". This gloss leaves the impression that the term employment includes activities that are generally perceived as employment regardless of the technicalities.
The agency is on firmer ground when it relies on the facts of the particular cases. In the Polvino case, for instance, where the claimant worked for her sons, the evidence shows that she performed essentially the same limited services while allegedly unemployed as she did while *127 allegedly employed. The only significant difference is that she received unemployment benefits instead of wages. In addition, as the agency notes, her periods of unemployment were never satisfactorily explained. It was appropriate for the agency to closely scrutinize this situation as it did, because of the possibility that the periods of employment and unemployment were manipulated in order to claim unemployment benefits. Under the circumstances the agency could conclude that if she understood that the services she performed for her sons constituted employment when she was on their payroll, she also realized that they constituted employment when she was technically laid off.
The Loll case presents a more sympathetic situation but nevertheless there is substantial evidence to sustain the agency's finding that she acted wilfully. The evidence shows that she was warned that her services at her father's drugstore constituted employment. When, despite this warning, she was later observed behind the counter, the agency could reasonably infer that her activities throughout the period were not the result of ignorance of the law. Notably in this case she was not required to repay all benefits received but only those relating to the days on which she was actually working at the store.
In the Valvo case, on the other hand, there is nothing in the record from which it can be reasonably inferred that she realized that her writing of a few monthly checks during a long period of seasonal unemployment would constitute employment disqualifying her from all benefits throughout the entire period. Although she worked for the father-in-law of a close friend, there is no suggestion that her employment was not legitimate and the obvious seasonal nature of the business and genuine lack of work during the period of claimed unemployment is undisputed. Thus the agency's finding of wilfulness was arbitrary.
With respect to the agency's alternative argument that claimant Valvo should be required to repay a portion of the benefits for making a false statement within the meaning of subdivision 4 of section 597 of the Labor Law, the Appellate Division correctly held that the statute only applies to false statements of fact and that petitioner's *128 certification of unemployment represented an error of law. This does not mean, as the agency suggests, that wilful misrepresentation is now required under this section and section 594 thus rendering one of the sections meaningless. It should be clear from the Appellate Division's decision that section 597 permits recovery of benefits received within the past year when the claimant has made a false statement of fact even though unintended. However, when claimant has in good faith received benefits to which he or she was not entitled because of a mistake of law on the part of the claimant or the agency, none of the benefits may be recovered. This interpretation is required by the wording of the statute, and supported by its legislative history, which shows that it was designed to provide relief to claimants when an overpayment or erroneous payment of benefits resulted from an honest mistake, and to preclude all recovery when the claimant was not in any way responsible for the error (see, e.g., Industrial Comm Memorandum of April 9, 1942 on Assembly Int No. 1804, Print No. 2455).
Accordingly, the order of the Appellate Division should be affirmed in Matter of Valvo, and reversed in Matter of Loll and Matter of Polvino. In the latter two cases the determination of the appeal board should be reinstated.
In Matter of Valvo: On review of submissions pursuant to rule 500.2 (b) of the Rules of the Court of Appeals (22 NYCRR 500.2 [g]), order affirmed, with costs.
In Matter of Loll and Matter of Polvino: On review of submissions pursuant to rule 500.2 (b) of the Rules of the Court of Appeals (22 NYCRR 500.2 [g]), orders reversed, without costs, and decisions of the Unemployment Insurance Appeal Board reinstated.
NOTES
[1] Disposition of these appeals has been expedited pursuant to 22 NYCRR 500.2(g).
[2] Section 522 of the Labor Law states: "`Total unemployment' means the total lack of any employment on any day. The term `employment' as used in this section means any employment including that not defined in this title."
[3] The relevant portion of section 594 of the Labor Law states: "A claimant who has wilfully made a false statement or representation to obtain any benefit * * * shall forfeit benefits for at least the first four but not more than the first eighty effective days following discovery of such offense for which he otherwise would have been entitled to receive benefits. Such penalty shall apply only once with respect to each such offense * * * A claimant shall refund all moneys received because of such false statement or representation made by him."
[4] The relevant portions of section 597 of the Labor Law state:
"3. Limitation on review of determinations. Any determination regarding a benefit claim may, in the absence of fraud or wilful misrepresentation, be reviewed only within one year from the date it is issued because of new or corrected information * * *
"4. Effect of review. Whenever a new determination in accordance with the preceding subdivision or a decision by a referee, the appeal board, or a court results in a decrease or denial of benefits previously allowed, such new determination or decision * * * shall not affect the rights to any benefits already paid * * * provided they were accepted by the claimant in good faith and the claimant did not make any false statement or representation and did not wilfully conceal any pertinent fact in connection with his claim for benefits."
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NO. 07-07-0158-CR
IN THE COURT OF APPEALS
FOR THE SEVENTH DISTRICT OF TEXAS
AT AMARILLO
PANEL D
OCTOBER 5, 2007
______________________________
SHEA F. RAYMOND, APPELLANT
V.
THE STATE OF TEXAS, APPELLEE
_________________________________
FROM THE COUNTY COURT AT LAW NO. ONE OF LUBBOCK COUNTY;
NO. 2005-496,325; HONORABLE LARRY B. “RUSTY” LADD, JUDGE
_______________________________
Before QUINN, C.J., and CAMPBELL and PIRTLE, JJ.
ABATEMENT AND REMAND
Following a plea of not guilty, Appellant, Shea F. Raymond, was convicted by a jury of driving while intoxicated. Punishment was assessed at 180 days confinement and a $2,000 fine, suspended in favor of eighteen months community supervision. Appellant timely perfected this appeal.
Failure of Appellant to File Brief
The clerk’s record was filed on May 31, 2007. On June 20, 2007, this Court directed Appellant’s counsel to certify in writing, on or before July 10, 2007, that he had complied with Rule 34.6(b) (designation of record and request for preparation) and Rule 35.3(b) (payment of reporter’s fee).
(footnote: 1) Counsel was further advised that failure to comply with this order would result in the deadline for Appellant’s brief being set. No response having been received, on July 20, 2007, this Court deemed the reporter’s record as having been filed, thereby making Appellant’s brief due on August 20, 2007. Appellant did not file a brief, and on September 10, 2007, Appellant was notified of the deficiency and advised that unless the brief or an appropriate response was received on or before September 20, 2007, the appeal was subject to being abated and the cause remanded. Appellant did not respond and the brief remains outstanding.
Motion to Withdraw
On August 7, 2007, Appellant’s retained counsel filed a Motion to Withdraw in which he represented that, despite diligent attempts, Appellant failed to remain in contact with him and also failed to make arrangements to pay for the appellate record. Counsel’s motion was granted by this Court pursuant to Rule 6.5
of the Texas Rules of Appellate Procedure; however, at that time no arrangements were made for the substitution of counsel.
Failure to File Appellant’s Brief Does Not Authorize
Dismissal or Consideration Without Briefs
Notwithstanding Appellant’s apparent disregard for the merits of his appeal, Rule 38.8(b)(1) provides that an appellant’s failure to file a brief does
not
authorize either dismissal of the appeal or consideration of the appeal without briefs, unless the trial court has found either (1) that the appellant no longer desires to prosecute the appeal, or (2) that the appellant is not indigent but has not made the necessary arrangements for filing a brief. Therefore,
we abate this appeal and remand the cause to the trial court for further proceedings pursuant to Rule 38.8(b)(4). Upon remand, the trial court shall utilize whatever means necessary to determine the following:
1. whether Appellant desires to prosecute the appeal;
whether Appellant is indigent and entitled to appointed counsel; and
whether Appellant is not indigent but has not made the necessary arrangements for filing a brief.
On remand, if Appellant fails to appear for a hearing after being notified of the date, time and place of hearing,
the trial court is authorized to presume that Appellant (1) does not desire to prosecute this appeal, (2) is not indigent and not entitled to appointed counsel; and, (3) that Appellant has not made necessary arrangements for filing a brief. Notice of that hearing shall be made to the Appellant in person or by mail to Appellant’s last known address by both certified and regular mail. For purposes of this notice Appellant’s last known address is presumed to be the last known address contained in Appellant’s counsel’s Motion to Withdraw, to-wit: 4317 53
rd
Street, Apt. A, Lubbock, Texas 79413.
Should it be determined that Appellant does want to prosecute this appeal and the court determines that he is indigent and entitled to appointed counsel or has retained new counsel, the name, address, telephone number, and state bar number of the newly-appointed or newly-retained counsel shall be provided to the Clerk of this Court.
Finally, the trial court shall execute findings of fact, conclusions of law, and any necessary orders it may enter regarding the aforementioned issues and cause its findings, conclusions, and orders, if any, to be included in a supplemental clerk's record to be filed with the Clerk of this Court by Friday, November 9, 2007.
It is so ordered.
Per Curiam
Do not publish.
FOOTNOTES
1:All references to the Rules herein are references to the Texas Rules of Appellate Procedure.
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NO. 07-06-0249-CR
IN THE COURT OF APPEALS
FOR THE SEVENTH DISTRICT OF TEXAS
AT AMARILLO
PANEL B
OCTOBER 4, 2007
______________________________
BRIAN EVERETT BRANDON, APPELLANT
V.
THE STATE OF TEXAS, APPELLEE
_________________________________
FROM THE 108
TH
DISTRICT COURT OF POTTER COUNTY;
NO. 48,036-E; HONORABLE ABE LOPEZ, JUDGE
_______________________________
Before QUINN, C.J., and CAMPBELL and HANCOCK, JJ.
MEMORANDUM OPINION
Appellant was placed on deferred adjudication for a period of 10 years after entering a plea of guilty, pursuant to a plea bargain, to the offense of aggravated kidnapping. The State subsequently filed a motion to proceed with adjudication alleging that appellant committed the new offense of assault. The trial court subsequently conducted a hearing and found the appellant guilty of aggravated kidnapping and, after receiving evidence regarding punishment, assessed appellant’s punishment at confinement in the Institutional Division of the Texas Department of Criminal Justice for a period of 15 years. We affirm.
Appellant’s attorney has filed an
Anders
brief and a motion to withdraw.
Anders v. California
, 386 U.S. 738, 87 S. Ct. 1396, 18 L. Ed. 2d 498 (1967). In support of his motion to withdraw, counsel certifies that he has diligently reviewed the record, and in his opinion, the record reflects no reversible error upon which an appeal can be predicated.
Id
. at 744-45. In compliance with
High v. State
, 573 S.W.2d 807, 813 (Tex.Crim.App. 1978), counsel has candidly discussed why, under the controlling authorities, there is no error in the trial court’s judgment. Additionally, counsel has certified that he has provided appellant a copy of the
Anders
brief and motion to withdraw and appropriately advised appellant of his right to file a
pro se
response in this matter.
Stafford v. State
, 813 S.W.2d 503, 510 (Tex.Crim.App. 1991). The court has also advised appellant of his right to file a
pro se
response. Although, appellant requested and was granted an extension of time to file a
pro se
response, appellant has not filed a response.
By his
Anders
brief, counsel raises grounds that could possibly support an appeal, but concludes the appeal is frivolous.
We have reviewed these grounds and made an independent review of the entire record to determine whether there are any arguable grounds which might support an appeal.
See
Penson v. Ohio
, 488 U.S. 75, 109 S. Ct. 346, 102 L. Ed. 2d 300 (1988);
Bledsoe v. State
, 178 S.W.3d 824 (Tex.Crim.App. 2005). We have found no such arguable grounds and agree with counsel that the appeal is frivolous.
Accordingly, counsel’s motion to withdraw is hereby granted and the trial court’s judgment is affirmed.
(footnote: 1)
Mackey K. Hancock
Justice
Do not publish.
FOOTNOTES
1:Counsel shall, within five days after the opinion is handed down, send his client a copy of the opinion and judgment, along with notification of the defendant’s right to file a
pro se
petition for discretionary review.
See
Tex. R. App. P.
48.4.
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875 P.2d 1190 (1994)
128 Or. App. 415
CITY OF EUGENE, Respondent,
v.
Kathy Kay KRUK, Appellant.
91-50006; CA A71272.
Court of Appeals of Oregon.
Submitted on Remand June 23, 1993.
Decided June 8, 1994.
*1191 Edmund J. Spinney, Eugene, argued the cause and filed the brief for appellant.
Jens Schmidt, Eugene, argued the cause for respondent. With him on the brief were Floyd F. Prozanski, Jr., and Harrang Long Watkinson Arnold & Laird, P.C.
Before WARREN, P.J., and EDMONDS and LANDAU, JJ.
LANDAU, Judge.
Defendant appeals her conviction under Eugene Municipal Code § 4.907 (EC § 4.907), which prohibits conduct that interferes with a police officer's lawful performance of a duty. We reversed the conviction on the ground that the ordinance was preempted by state law. City of Eugene v. Kruk, 115 Or.App. 494, 839 P.2d 250 (1992). On review, the Supreme Court vacated our opinion and remanded for reconsideration in the light of City of Portland v. Jackson, 316 Or. 143, 850 P.2d 1093 (1993). City of Eugene v. Kruk, 316 Or. 436, 851 P.2d 1140 (1993). On reconsideration, we again reverse.
Plaintiff City of Eugene (the city) charged defendant with violating EC § 4.907. Defendant demurred, arguing that the facts alleged in the complaint failed to constitute an offense, because EC § 4.907 is unconstitutional on its face under Article XI, section 2, of the Oregon Constitution, which prohibits local governments from enacting legislation that conflicts with state criminal laws.[1]City of Portland v. Jackson, supra, 316 Or. at 146, 850 P.2d 1093. According to defendant, EC § 4.907 conflicts with ORS 162.235 and ORS 162.315. The trial court overruled her demurrer. On appeal, defendant assigns error to the trial court's decision.
In Jackson, the Supreme Court summarized the proper procedure for determining whether an ordinance is invalid under Article XI, section 2:
"[W]e first must examine the ordinance and statutes that the parties claim are in conflict. Next, we determine what conduct the ordinance prohibits. Third, we look to see whether the applicable statute or statutes permit that conduct, either by an express legislative decision, by a decision apparent in the legislative history, or otherwise. If the ordinance prohibits conduct that the statute permits, the laws are in conflict and the ordinance is displaced under Article XI, section 2." 316 Or at 151, 850 P.2d 1093.
We proceed, then, with an examination of defendant's challenge in accordance with the three steps described in Jackson.
We begin with the texts of the ordinance and the relevant statutes. EC § 4.907 generally prohibits any interference with a police officer in the lawful performance of duties, if the conduct was done intentionally to interfere or with reckless disregard for its interference:
"It shall be unlawful for any person, intentionally or with reckless disregard thereof, to interfere with a police officer in the officer's lawful performance of his or her duties. To interfere with as used in this section shall mean any physical act, including a refusal to leave a particular area in response to a lawful order from a police officer, that prevents or could reasonably be expected to prevent a police officer from performing his or her duties." EC § 4.907.
Under ORS 162.235, certain conduct is unlawful if it is intentionally done to interfere with the administration of any governmental or judicial function, other than the making of an arrest. It provides, in part:
"(1) A person commits the crime of obstructing governmental or judicial administration if the person intentionally obstructs, impairs or hinders the administration *1192 of law or other governmental or judicial function by means of intimidation, force, physical or economic interference or obstacle.
"(2) This section shall not apply to the obstruction of unlawful governmental or judicial action or interference with the making of an arrest."
Under ORS 162.315, intentional resistance to arrest is unlawful if the actor knows that the person resisted is a peace officer making an arrest. It provides, in part:
"(1) A person commits the crime of resisting arrest if the person intentionally resists a person known by the person to be a peace officer in making an arrest.
"(2) `Resists,' as used in this section, means the use or threatened use of violence, physical force or any other means that creates a substantial risk of physical injury to any person and includes behavior clearly intended to prevent being taken into custody by overcoming the actions of the arresting officer. The behavior does not have to result in actual physical injury to the arresting officer. Passive resistance does not constitute behavior intended to prevent being taken into custody.
"(3) It is no defense to a prosecution under this section that the peace officer lacked legal authority to make the arrest, provided the peace officer was acting under color of official authority."
The statute applies to a person who resists the arrest of another, as well as to a person who resists his or her own arrest. State v. Brandon, 35 Or.App. 661, 663, 582 P.2d 52, rev. den. 284 Or. 235 (1978).
In accordance with Jackson, we determine what conduct EC § 4.907 prohibits. By its terms, the ordinance makes unlawful "any physical act * * * that prevents or could reasonably be expected to prevent a police officer from performing his or her duties." The forbidden conduct can be either active or passive, because the ordinance expressly includes a prohibition against any "refusal to leave a particular area in response to a lawful order from a police officer."
Finally, we determine whether ORS 162.235 or ORS 162.315 permits conduct that EC § 4.907 prohibits. The Supreme Court explained that statutory permission may be found in the express language of the statute, or it may be "apparent in the legislative history, or otherwise." 316 Or at 151. In this case, we conclude that both the text and the legislative history of the relevant statutes reflect an unmistakable intent to permit what EC § 4.907 prohibits.
ORS 162.235, enacted in 1971, provides that the crime of obstructing governmental or judicial administration does not apply to interference with the making of an arrest. The commentary to the Proposed Oregon Criminal Code of 1971 explains that ORS 162.235
"requires that the prohibited conduct be manifested by threats, violence or physical interference, a limitation that recognizes certain constitutional safeguards, e.g., freedom of speech and assembly.
"* * * * *
"It would be inconsistent to prohibit in this section all activities intended to obstruct governmental administration, since broadly generalized prohibitory language might be construed as a restriction upon the lawful exercise of political agitation in opposition to governmental policy." See also Commentary to Proposed Oregon Criminal Code 199 (1970); Commentary to Oregon Criminal Code of 1971, 99 (1975).
Consistent with that concern, in 1989 the legislature amended ORS 162.315 expressly to exclude passive resistance from the crime of resisting arrest. Or.Laws 1989, ch. 877, § 1.
EC § 4.907 expressly prohibits "any physical act, including refusal to leave a particular area in response to a lawful order from a police officer." By its terms, it prohibits passive resistance to arrest. In other words, the statutes permit what the ordinance prohibits. Under Jackson, therefore, EC § 4.907 is invalid.
The city insists that the ordinance does not prohibit conduct that the statute permits, because "the ordinance and the statute regulate different conduct." It argues that
"the ordinance regulates interference with a police officer in any type of setting where *1193 the officer is attempting to perform his or her lawful duties, while the statute is limited to the situation of an officer attempting to make an arrest."
The city's explanation of the coverage of the two provisions is correct, but its conclusion that they regulate different conduct is not.
The ordinance expressly prohibits refusing to leave a particular area when that conduct interferes with an officer's lawful performance of any duty. A police officer is performing a duty when he or she makes an arrest. Therefore, the language of the ordinance prohibits, among other things, refusing to leave a particular area, when that refusal interferes with an officer making an arrest. The ordinance does not distinguish between a refusal to leave an area that is communicated by force or violence and a refusal to leave that is communicated by passive resistance. Therefore, the ordinance and the statute do not regulate different conduct; rather, the conduct that the statute regulates is a subset of the conduct that the ordinance regulates. In short, the ordinance broadly prohibits all activities that obstruct a police officer's administration of his or her duties in a manner that the legislature expressly rejected, because "broadly generalized prohibitory language might be construed as a restriction upon the lawful exercise of political agitation in opposition to governmental policy." Commentary to Proposed Oregon Criminal Code 199 (1970); see also Commentary to Oregon Criminal Code of 1971, 100 (1975).
Because the statute permits passive resistance to an officer making an arrest and the ordinance prohibits the same conduct, "the laws are in conflict and the ordinance is displaced under Article XI, section 2." City of Portland v. Jackson, supra, 316 Or. at 151, 850 P.2d 1093. Accordingly, defendant's demurrer should have been allowed. Her other assignments of error require no discussion.
Reversed.
NOTES
[1] Article XI, section 2, provides, in part:
"The legal voters of every city and town are hereby granted power to enact and amend their municipal charter, subject to the Constitution and criminal laws of the State of Oregon * * *." (Emphasis supplied.)
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178 Ariz. 539 (1994)
875 P.2d 198
STATE of Arizona, Appellee/Respondent,
v.
Ruben Allen ALVARADO, Appellant/Petitioner.
Nos. 1 CA-CR 91-0537, 1 CA-CR 92-1168 PR.
Court of Appeals of Arizona, Division 1, Department E.
March 8, 1994.
Review Denied June 21, 1994.[*]
*540 Grant Woods, Atty. Gen. by Paul J. McMurdie, Chief Counsel, Crim. Appeals Section, Susanna C. Pineda, Asst. Atty. Gen., Phoenix, for appellee/respondent.
Dean W. Trebesch, Maricopa County Public Defender by Lawrence S. Matthew, Phoenix, for appellant/petitioner.
Ruben Allen Alvarado, in pro. per.
OPINION
NOYES, Judge.
Appellant was found guilty of offering to sell marijuana, a class three felony in violation of A.R.S. section 13-3405, with one prior felony conviction. After being sentenced to a presumptive term of 7.5 years in prison, Appellant filed a direct appeal. He later filed a *541 petition for post conviction relief, which was denied by the trial court. Appellant then filed a petition for review of that denial. We consolidated the appeal with the petition for review. We have jurisdiction pursuant to A.R.S. sections 12-120.21(A)(1) (1992), 13-4031 (1989), and -4033(A) (Supp. 1992).
In the appeal, Appellant argues that his motion for judgment of acquittal should have been granted because there was no substantial evidence to support the conviction. See Ariz.R.Crim.P. 20. We conclude otherwise, but we also conclude that the case must be reversed and remanded for a new trial because the main legal theory argued by the State to support the conviction was an incorrect proposition of law regarding the mens rea element of the crime. Because the relief granted on the appeal moots the issues raised in the petition for review, we deny review.
I.
The trial was to the court, Appellant having waived his right to a jury trial. The State's case was based on conversations Appellant had with undercover officer Flores. Both Flores and Appellant testified at trial. Viewed in a light most favorable to sustaining the conviction, the evidence is fairly summarized in this passage from the State's final argument:
Mr. Alvarado said to Officer Flores if you give me $5,000 I will do the following. I will go to Douglas. I will free up a load of marijuana from Roberts. I will have that marijuana brought back to Phoenix on the Memorial Day weekend. I will sell the marijuana [to unnamed third parties], give you a hundred percent return on your investment and then I will give you an option on another 500 pounds of marijuana.
In his testimony, Flores explained the "option" part of the proposal as follows:
Once he returned my money after a ten-day period $5,000.00 plus an additional $5,000.00 he would go back to Douglas and pick up another load between two and four hundred pounds of marijuana. Once he brought it to Phoenix he said I would have the option. We already negotiated purchasing for $575.00 a pound and I would have the option of buying the marijuana for that price.
The State later became concerned that Appellant might disappear if given $5,000, so Flores gave no money to Appellant, and Appellant was arrested based on the evidence summarized above.
The State originally charged Appellant with conspiracy to sell marijuana, but later dismissed that complaint and filed a new one charging Appellant with offering to sell marijuana. The State changed theories because it thought the evidence insufficient to prove an agreement between Appellant and Flores, but sufficient to prove an offer to sell marijuana even if, as anticipated, Appellant's defense was that he never intended to sell marijuana. The State reasoned that offering to sell marijuana is a strict liability crime and that the speaker's intentions are irrelevant.
As anticipated by the State, Appellant's defense at trial was that he had no intention of selling marijuana to Flores, his intention was to defraud Flores of $5,000 by taking his money and disappearing. This defense was weakened by circumstantial evidence, including Appellant's testimony that he had sold large quantities of marijuana in the past.
II.
A motion for a judgment of acquittal should be granted if the State has failed to produce "substantial evidence to warrant a conviction." See Ariz.R.Crim.P. 20. Substantial evidence is evidence that "reasonable persons could accept as adequate and sufficient to support a conclusion of defendant's guilt beyond a reasonable doubt." State v. Jones, 125 Ariz. 417, 419, 610 P.2d 51, 53 (1980). In considering the sufficiency of the evidence, we evaluate the entire record, including Appellant's testimony. See State v. Nunez, 167 Ariz. 272, 279, 806 P.2d 861, 868 (1991). To set aside a verdict for insufficient evidence, "it must clearly appear that upon no hypothesis whatever is there sufficient evidence to support the conclusion reached by the [trier-of-fact]." State v. Arredondo, 155 Ariz. 314, 316, 746 P.2d 484, 486 (1987).
*542 Although the State relied at trial and on appeal mainly on its strict liability theory, it has also argued the backup theory that Appellant did, in fact, make a "real" offer to sell marijuana to Flores and was therefore guilty on that basis as well. Because the court provided no explanation for the verdict, we consider all theories argued by the State in support of that verdict.
A.
A.R.S. section 13-3405(A)(4) provides: "A person shall not knowingly ... offer to sell or transfer marijuana."
The State's main theory is that, if the speaker knows what he says, and if what he says sounds to a reasonable person like an offer to sell marijuana, the speaker is guilty of offering to sell marijuana no matter what his intentions. This theory lacks a necessary mens rea because it would criminalize mere words, even those spoken without criminal intent. See, e.g., State v. Williams, 144 Ariz. 487, 488, 698 P.2d 732, 733 (1985) (holding that the general rule is that state must demonstrate some degree of wrongful intent in criminal cases); Spitz v. City of Phoenix, 127 Ariz. 405, 407, 621 P.2d 911, 913 (1980) (stating that requirement of mens rea in criminal cases is rule rather than exception).
"Knowingly" is defined in A.R.S. section 13-105(7)(b) (Supp. 1993), which provides:
"Knowingly" means, with respect to conduct or to a circumstance described by a statute defining an offense, that a person is aware or believes that his or her conduct is of that nature or that the circumstance exists. It does not require any knowledge of the unlawfulness of the act or omission.
The word "conduct" in the definition of "knowingly" refers to something more than the mere utterance of words. See State v. Padilla, 169 Ariz. 70, 72, 817 P.2d 15, 17 (App. 1991). To commit the crime of offering to sell marijuana, a person must be aware or believe that he has made an offer to sell the substance, not that he has told a lie or made a joke. Division Two of this Court recently reached this same conclusion in State v. Strong, 178 Ariz. 507, 508, 875 P.2d 166, 167 (App. 1993):
The conduct proscribed by the statute in question here is an offer to sell narcotic drugs. To be convicted, a defendant must be aware or believe that he or she is making such an offer. This clearly would not include the sort of ["fraudulent, insincere, or made in jest"] conduct described by appellant.
See also State v. Douglas, 120 Ariz. 613, 615, 587 P.2d 1190, 1192 (App. 1978) (stating that "[i]f appellants knew their offer was false, the requisite intent to sell a narcotic drug would be lacking"). Although the State argued otherwise, Appellant could not be convicted of offering to sell marijuana to Flores if his only intention was to take Flores' money and disappear.
B.
One theory of liability argued by the State that we will mention parenthetically, because the theory was properly abandoned prior to trial, was that the offerees were those unnamed third parties to whom Appellant would deliver the marijuana "freed up" by the $5,000 from Flores. This argument was based upon the assumption that Appellant meant what he said to Flores about marijuana. Even so, this theory lacks a corpus delicti and, therefore, the evidence to support this theory is insufficient as a matter of law. See State v. Gillies, 135 Ariz. 500, 506, 662 P.2d 1007, 1013 (1983) ("An accused may not be convicted on his own uncorroborated confessions."). It is correct to say that when statements constitute a crime, as they do in an "offer to sell" case, there need be no evidence other than the statements themselves and criminal intent. See State v. Daugherty, 173 Ariz. 548, 552, 845 P.2d 474, 478 (App. 1992). In this case, however, the State did not have any evidence of Appellant's "offer" to unnamed third parties, it only had evidence of Appellant's statements to Flores. Appellant cannot be convicted of offering to sell marijuana to one party when the only evidence of that offer is his "uncorroborated confession" to some other party.
*543 C.
The backup theory relied on by the State at trial as an alternative to the "strict liability" theory is that if Appellant meant what he said to Flores about marijuana, that conduct was an offer to sell marijuana to Flores. Although it is a close question, we agree that the evidence was sufficient to support a guilty verdict based on this theory of liability.
An "offer" is a proposal to enter into a contract on the terms contained in the offer, see, e.g., K-Line Builders, Inc. v. First Fed. Sav. & Loan Ass'n, 139 Ariz. 209, 212, 677 P.2d 1317, 1320 (App. 1983), and that is what Appellant did here. He made a proposal to Flores, one of the terms of which was the sale of marijuana to Flores. Although what Appellant said here would not support a lawsuit for specific performance, his proposal did contain all terms necessary to support a conviction for offering to sell marijuana. The product and the price were clearly stated, marijuana at $575.00 per pound. The time for the sale was not precisely stated, but a reasonable time could fairly be inferred from the proposal. The weight of marijuana was not precisely stated, but precise weight is not an element of this crime, and the offer definitely involved some real weight, 200 to 400 pounds.
If the trial court found that Appellant meant what he said to Flores about marijuana, the trial court could also have found Appellant guilty of offering to sell marijuana to Flores. To this extent, then, we find substantial evidence to support the verdict.
III.
We now address whether the State's strict liability theory taints the conviction. The State argued two alternative legal theories at trial, and its main theory was based on a misunderstanding about the mens rea element of the crime. The trial court's general verdict does not indicate on which legal theory it was based. If this had been a jury trial, we could look at the record made in settling jury instructions, and at the instructions themselves, and know the court's ruling on the elements of the crime. If the court had instructed the jury on the strict liability theory urged by the State, we would reverse and remand for a new trial, regardless of the other instructions, because the verdict could have been based on an incorrect statement of the elements of the crime. Cf. State v. Rea, 145 Ariz. 298, 299, 701 P.2d 6, 7 (App. 1985) (reversing and remanding for new trial when jury was instructed on an improper legal theory and was not instructed on proper theory).
Because there are no jury instructions in this case, we look to the record to find any indication of whether the court was misled by the State's strict liability theory. We begin our inquiry with the presumption that the court applied the proper legal theory in the case. "Trial judges are presumed to know the law and to apply it in making their decisions." Walton v. Arizona, 497 U.S. 639, 653, 110 S. Ct. 3047, 3057, 111 L. Ed. 2d 511 (1990).
This presumption notwithstanding, we cannot conclude that the trial court rejected the strict liability theory in this case. First, the State placed great reliance on that incorrect theory, arguing it extensively in the pre-trial, mid-trial, and post-trial stages of the case. On each occasion, Appellant's counsel responded with argument and authority in opposition. Because so much of the battle at trial was about the elements of the crime, we find it probable that the verdict, which was the one sought by the State, was based on the legal theory argued most vigorously by the State, the strict liability theory.
We also find it significant that the record contains no expression by the trial court of acceptance or rejection of the State's strict liability theory. We find it probable that, if the court had ever been persuaded that the State's strict liability theory was an incorrect proposition of law, it would have so advised the parties of that conclusion, if for no other reason than to eliminate further waste of time on a bad legal argument about the elements of the crime. The State made the strict liability theory the main issue in the case, and the trial court never expressed rejection of that theory. Although we are not advised on which legal theory the verdict was based, this record erodes any presumption *544 that it was based on the proper legal theory.
We have considered remanding the case with directions that the trial court think back to the verdict and specify the legal theory on which it was based. If the verdict was based on strict liability, the court would enter a judgment of acquittal; if it was based on proper mens rea, it would re-affirm the verdict and sentence. Remands of this type have been sanctioned to resolve ambiguities in sentencing proceedings. See, e.g., State v. Ojeda, 159 Ariz. 560, 562, 769 P.2d 1006, 1008 (1989) (remanding for new disposition hearing unless record "clearly shows the trial judge would have made the same disposition even without consideration of the violations set aside on appeal"); State v. Weaver, 158 Ariz. 407, 410, 762 P.2d 1361, 1364 (App. 1988) (remanding for resentencing because trial court erroneously thought consecutive sentences were mandatory, not discretionary).
We have not found any authority for a post-judgment remand with directions that a trial court state the legal theory on which it based a guilty verdict in a criminal case. We conclude that such a remand would be unwise, if not unconstitutional, on the record before us. No matter how high our regard for the knowledge and integrity (and memory) of the trial court, a remand in this case with directions to specify whether the verdict was based on the right or the wrong legal theory argued by the State would have the appearance of giving the State a second try at convicting Appellant without giving Appellant the due process of a second trial.
We conclude that the proper resolution here is to give each party the opportunity to have a second trial, one in which there is no confusion about the mens rea element of the crime. The judgment and conviction are reversed, and the matter is remanded for a new trial.
CLABORNE, P.J., concurs.
KLEINSCHMIDT, Judge, dissenting in part.
I agree with the majority in all respects except as to the remedy. I believe that a new trial is unnecessary. I would remand to the trial judge with directions, not to reconsider the case in light of the law set out in this opinion, but simply and solely to state the basis for the verdict he entered. If the trial judge accepted the State's theory that all it needed to do was prove that the Appellant said the words that constituted the offer to sell and found the Appellant guilty on that basis, the Appellant is entitled to be acquitted. If he found the Appellant guilty because he believed the Appellant really intended to offer to sell marijuana and was not just trying to defraud Flores, the conviction should stand.
NOTES
[*] Martone, J., of the Supreme Court, voted to grant the petition for review.
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74 Wash. App. 727 (1994)
875 P.2d 693
In the Matter of the Custody of B.S.Z.-S.
ANNIE ZINK ROBINSON, Appellant,
v.
LOREN ZINK, ET AL, Respondents.
No. 31725-3-I.
The Court of Appeals of Washington, Division One.
July 5, 1994.
Sidney S. Rodabough, for appellant.
Osgood S. Lovekin, Jr., and Shorett, Hardman, Lovekin & Young, for respondents.
GROSSE, J.
Annie Zink Robinson (Annie) appeals the summary judgment granted to Loren and Karen Zink (the Zinks), her former husband and his current wife. The judgment denied Annie's petition for the scheduled and enforceable visitation of her granddaughter, B. The trial court held *728 that Annie had no standing to continue her petition for visitation after B was adopted by the Zinks. See Bond v. Yount, 47 Wash. App. 181, 734 P.2d 39 (1987).
B was born on May 4, 1984, to Martin Zink and Terri Struss.[1] Martin Zink and Terri Struss never married, but paternity was established. Martin Zink had no interest in raising B, who lived with Terri Struss and her boyfriend. In 1990, Terri Struss died. B continued to live with her mother's boyfriend for a short time until she was placed with Loren and Karen Zink, her paternal grandfather and stepgrandmother.
Shortly thereafter, the Zinks petitioned for custody of B. Martin Zink consented to the custody decree and the petition was not contested by anyone, including Annie. An amended decree of custody was entered in January of 1991.
In March 1991, the Zinks petitioned for adoption of B. Again, her father consented. However, the adoption was delayed while Child Protective Services (CPS) Adoption Services investigated Annie's claim that Loren Zink had a prior history of molesting children. As a result of these allegations, the Zinks and B participated in various psychological evaluations. Loren Zink also underwent a sexual deviancy evaluation. CPS Adoption Services found the allegations to be baseless.
Later, in July 1991, Annie filed a petition for grandparent visitation. Two Court Appointed Special Advocate Program (CASA) evaluations ensued. The initial report recommended that Annie receive regularly scheduled visitation on the second weekend of each month. The second report recommended visitation not more than once every 3 months.
Before the adoption became final, Annie filed a motion for default judgment on her visitation petition. Subsequent to the filing of the motion and before a hearing on it was held, a decree of adoption was entered. Counsel for the Zinks notified opposing counsel that the adoption was final and indicated his belief that Annie no longer had standing to *729 bring the motion. Annie's counsel went forward with the motion and on the hearing date counsel for the Zinks failed to appear. A default judgment was entered. The default judgment granted visitation of two weekends a month to Annie. Subsequently the default was vacated. A trial date was set. The Zinks brought on a motion for summary judgment seeking dismissal of the petition for visitation.
Annie sought visitation similar to that asked by a natural parent in the course of a dissolution action. The Zinks, now the parents, opposed such a specific visitation schedule. They asserted that visits should be allowed occasionally, whenever B desired to visit and when it was mutually convenient.
Based on the decisions of Bond v. Yount, supra, and Mitchell v. John Doe, 41 Wash. App. 846, 706 P.2d 1100 (1985), a superior court commissioner held that Annie had no standing to petition for visitation with B once the adoption was final.
Annie appeals the order and claims: (1) that the order on summary judgment failed to comply with CR 56(h); (2) that the Bond and Mitchell cases are not controlling and/or should be overruled; and (3) that the test in determining visitation should be the "best interests of the child", not the privacy of adoption. We affirm the trial court's decision on the ground that, as a matter of law under applicable statutes and case law, Annie Zink Robinson lacked standing to petition for visitation once the adoption became final.[2]
[1] Annie urges this court to reconsider its holding in Bond v. Yount, supra, by declining to follow it, or by restricting its holding. The facts of the case before us are remarkably similar to those in Bond, and we will not restrict the holding of that case: a grandparent has no standing to petition for visitation rights subsequent to adoption of the grandchild by others, whether strangers or relatives. The *730 Zinks' formal adoption of B terminated any visitation rights which her biological paternal grandmother may have had. Bond v. Yount, supra. In Bond, the maternal grandparents adopted a child and the biological paternal grandparents petitioned for visitation. As here, the grandparents seeking visitation already had a relationship with the child.
The trial court in Bond originally ordered visitation rights under former RCW 26.09.240, the statute in effect at the time.[3] We reversed, holding that the adoption terminated any visitation rights of the biological paternal grandparents. Our opinion held that in enacting RCW 26.09.240, the Legislature did not intend "to chip away the strong policy holding the privacy of adoption to be sacrosanct." Bond, 47 Wn. App. at 183.
Further, the Bond court cited Mitchell v. John Doe, supra, which held that grandparents have no standing to petition for visitation with a grandchild who has been adopted by strangers. Bond extended the Mitchell holding to visitation to blood relatives, stating:
The only factual difference between Mitchell and the case at bar is that this child was not adopted by strangers but by the maternal grandparents. We do not find this distinction sufficient to outweigh the policy underlying adoptions.
Bond, 47 Wn. App. at 183.
In arguing that Bond should be reversed, Annie contends that the mere fact of adoption should not automatically circumscribe the class of persons who might contribute to the *731 best interests of the child. She acknowledges that Bond is the law, but attempts to circumvent it by claiming that, under RCW 26.10.160(3), a trial court may still decide whether it is in the best interest of a child to allow the visitation.[4] However, RCW 26.10.160(3) involves nonparental actions for child custody and the limitations on visitation rights therein. That statute also contains language similar to former and current RCW 26.09.240.
In contrast to other jurisdictions, Washington does not statutorily recognize the rights of grandparents to visitation, except that they have rights in the context of a child custody proceeding pursuant to RCW 26.10, or in the context of a proceeding for dissolution pursuant to RCW 26.09. RCW 26.09 pertains to custody as between parents and presumes that the child will continue to reside with one or both of those parents. The chapter does its best to continue some semblance of a family relationship for the children of a broken marriage, and in that context the best interests of the children may well encompass visitation with grandparents or others with an ongoing relationship with the children. RCW 26.10 is limited to circumstances where custody is at issue and the child does not reside with a parent or where it is alleged that the parents are not suitable custodians. Again, that statute does its best to preserve family relationships and the provision for petitions for visitation by any person makes sense in that context.
*732 [2, 3] Unlike those statutes, the adoption statute has a contrary purpose, at least in the context of an adoption by a new family unit; that is, the creation of that new family. As discussed previously in footnote 3, this could be qualified in the context of an adoption by a new spouse of a natural parent with whom the child resides, but those facts are not present here. Open adoption agreements are statutorily recognized under RCW 26.33.295, but only in specific circumstances.[5] Grandparent visitation is not included within these circumstances.
The statutory maxim that by the expression of one thing the Legislature meant to exclude the other could be applied. However, we consider it equally noteworthy that the decisions in Mitchell and Bond have been on the books for many years and the Legislature has not acted to change them, even while approving the open adoption provisions in 1990. Thus, we see in this a legislative policy determination that an adoption, in the context such as we have before us, constitutes a fresh beginning for a new family that should be free from interference from third parties.
We are not saying the Legislature could not make a different choice, as the competing policy interests are quite compelling. Grandparents can and do play an important role in the development of a child, and severing that role through adoption might not be in the best interests of the child. However, the ultimate policy is one for the Legislature to determine. Certainly the Legislature could add grandparents to the open adoption provisions should it choose to do so. Even so, it has not yet chosen to permit continued relationships after adoption except by agreement. Therefore we are not in a position to go further and grant standing to a grandparent to interfere with the finality and sanctity of an adoption decree.
*733 The decision of the trial court is affirmed.
COLEMAN and AGID, JJ., concur.
NOTES
[1] Martin is the son of Loren Zink and Annie Zink Robinson, who were formerly married.
[2] Due to the basis of our decision, Annie's other claims do not require discussion. The documents and evidence that were before the commissioner are of little moment considering the initial decision that as a matter of law Annie had no standing to bring a visitation petition. Similarly we need not address the "best interest of the child" rule, because the issue of visitation is never reached.
[3] Former RCW 26.09.240 stated in part:
"The court may order visitation rights for any person when visitation may serve the best interest of the child whether or not there has been any change of circumstances.
"Any person may petition the court for visitation rights at any time." Laws of 1987, ch. 460, § 18.
Since Bond, the Legislature amended RCW 26.09.240 through Laws of 1989, ch. 375, § 13, effective May 12, 1989. Although quite similar, the revised statute now reads in pertinent part:
"The court may order visitation rights for a person other than a parent when visitation may serve the best interest of the child whether or not there has been any change of circumstances.
"A person other than a parent may petition the court for visitation rights at any time."
[4] Although not cited, there is authority for this proposition. Bond was critically viewed by the Colorado Court of Appeals in In re Marriage of Aragon, 764 P.2d 419 (Colo. Ct. App. 1988). There, a paternal grandparent appealed from a determination of the court that the grandparent visitation statute operated automatically to terminate a grandparent's right to visitation following final adoption of a grandchild by a stepparent. The court held that a grandparent's visitation rights were not subject to statutory exclusion, and further that a grandparent's visitation rights were statutorily derived and thus not divested by adoption.
The case is interesting in contrast to the one before us. First, Colorado statutes recognized grandparent visitation rights but not specifically with respect to adoptions, thus the court did not have to reach as far as we are being asked to reach. Second, the child in that case was adopted by a new spouse of the natural mother and the court likened this to dissolution and custody situations where the grandparent had the clear statutory right to visitation; in fact it had been previously ordered. Faced with similar facts and statutes we might agree.
[5] RCW 26.33.295(1) provides as follows:
"Nothing in this chapter shall be construed to prohibit the parties to a proceeding under this chapter from entering into agreements regarding communication with or contact between child adoptees, adoptive parents, and a birth parent or parents."
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NO. 07-07-341-CR
IN THE COURT OF APPEALS
FOR THE SEVENTH DISTRICT OF TEXAS
AT AMARILLO
PANEL B
OCTOBER 24, 2007
______________________________
EFRAIN ARANDA, APPELLANT
V.
THE STATE OF TEXAS, APPELLEE
_________________________________
FROM THE 242ND DISTRICT COURT OF HALE COUNTY;
NO. B13671-0003; HONORABLE ED SELF, JUDGE
_______________________________
Before QUINN, C.J., and CAMPBELL and HANCOCK, JJ.
ORDER OF ABATEMENT AND REMAND
Appellant, Efrain Aranda, has given notice of appeal from a conviction and sentence
in the 242nd District Court of Hale County, Texas (the trial court), for Possession of
Marihuana. The clerk of the court of appeals received and filed the trial court clerk's record
on August 29, 2007. The trial court reporter's record was due to be filed no later than
August 31, 2007. The clerk of this court is in receipt of a letter from the trial court reporter
dated September 17, 2007, which advises appellant has not made any designation of the
record on appeal. No reporter's record has been filed. By letter dated September 20,
2007, the clerk of this court advised counsel for appellant that Texas Rules of Appellate
Procedure 34.6(b)(1) and 35.3(b)(2) were to be complied with and that such compliance
should be confirmed in writing to this court no later than October 10, 2007. No response
has been received from appellant's counsel, and the clerk's record in this court reflects no
further action by any party to the appeal to prosecute the appeal. Accordingly, this appeal
is abated and the cause is remanded to the trial court. TEX . R. APP. P. 37.3(a)(2).
Upon remand, the trial court shall immediately cause notice of a hearing to be given
and, thereafter conduct a hearing to determine the following:
1. whether appellant desires to prosecute the appeal, and if so,
2. (a) whether appellant's counsel of record continues to represent
him and what steps need to be taken to ensure a diligent
pursuit of the appeal; or
(b) whether counsel for appellant has abandoned the appeal;
3. whether appellant has been deprived of a reporter's record because
of ineffective assistance of counsel or for any other reason; and
4. if appellant desires to prosecute this appeal, whether appellant's
present counsel should be replaced.
If the trial court determines that the present attorney for appellant should be
replaced, the court should cause the clerk of this court to be furnished the name, address,
and State Bar of Texas identification number of the newly-appointed or newly-retained
attorney.
The trial court is directed to: (1) conduct any necessary hearings; (2) make and file
appropriate findings of fact, conclusions of law and recommendations, and cause them to
be included in a supplemental clerk's record; (3) cause the hearing proceedings to be
2
transcribed and included in a reporter's record; and (4) have a record of the proceedings
made to the extent any of the proceedings are not included in the supplemental clerk's
record or the reporter's record. In the absence of a request for extension of time from the
trial court, the supplemental clerk's record, reporter's record of the hearing and
proceedings pursuant to this order, and any additional proceeding records, including any
orders, findings, conclusions and recommendations, are to be sent so as to be received
by the clerk of this court not later than November 26, 2007.
It is so ordered.
Per Curiam
Do not publish.
3
|
01-03-2023
|
09-07-2015
|
https://www.courtlistener.com/api/rest/v3/opinions/1039293/
|
REVISED August 28, 2013
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
FILED
August 8, 2013
No. 12-10312
Lyle W. Cayce
Clerk
NATASHA WHITLEY,
Plaintiff-Appellant
v.
JOHN NICK HANNA; ROBERT BULLOCK; MICHAEL MURRAY;
ROBERT GRUBBS,
Defendants-Appellees
Appeal from the United States District Court
for the Northern District of Texas
Before KING, DAVIS, and ELROD, Circuit Judges.
KING, Circuit Judge:
Plaintiff-Appellant Natasha Whitley appeals the dismissal of her 42 U.S.C.
§ 1983 action and the denial of her motion to amend her complaint. Whitley’s
claims arise out of former City of Brownwood police sergeant Vincent Ariaz’s
sexual abuse of her. Defendants-Appellees John Hanna, Robert Bullock, Michael
Murray, and Robert Grubbs were state officers involved in the investigation and
arrest of Ariaz. Whitley argues that Appellees failed adequately to protect her
from Ariaz, and used her as “sexual bait” to strengthen their prosecutorial case
against him. The district court granted Appellees’ motions to dismiss after
No. 12-10312
finding that Whitley failed to state a § 1983 claim and that Appellees would be
entitled to qualified immunity. It also denied Whitley’s motion to amend her
complaint. For the following reasons, we AFFIRM the district court’s judgment.
I. FACTUAL AND PROCEDURAL BACKGROUND
In 2000, the City of Brownwood created Explorer Post 1150 as part of the
“Explorers” program—a school- and work-based program to introduce young
people to various vocations. Explorer Post 1150 was established to teach
participants about law enforcement, including police training and operations.
Vincent Ariaz, a then-sergeant with the City of Brownwood Police Department,
acted as Explorer Post 1150’s advisor. In January 2007, Ariaz was investigated
for alleged abuse of one of the program’s female participants (“A.M.”). A
Brownwood police officer, together with appellee Texas Ranger John Hanna,
conducted the investigation.
Hanna interviewed A.M., and learned that Ariaz would use her as an
example for activities like handcuffing and have her stay late when no one else
was around. Hanna also discovered from A.M. that Ariaz would rub his body
against hers and ask her about her sexual experiences. A.M. further informed
Hanna of an incident in which she and Ariaz were alone in a storeroom. Ariaz
allegedly closed the door, turned off the lights, and proceeded to kiss A.M. and
fondle her breasts. Despite A.M. telling him to stop, Ariaz continued until she
was able to make noise and escape. A.M.’s mother and her then-boyfriend also
told Hanna that Ariaz had sent A.M. numerous sexually suggestive text
messages, including proposing having sex in a motel room. The boyfriend also
lodged a complaint against Ariaz, to no apparent effect. An affidavit by another
police officer stated that Ariaz had expressed a desire to engage in different
sexual acts with a young girl.
Whitley’s allegations do not disclose what action, if any, the City of
Brownwood or the Brownwood Police Department took in response to Hanna’s
2
No. 12-10312
investigation or Ariaz’s conduct. We do know that Ariaz continued as a police
officer for the City of Brownwood. Hanna, following his investigation, notified
his lieutenant, appellee Robert Bullock, that he had obtained a “written
statement detailing a pattern of sexual harassment, text messages of [a] sexual
nature, and one incident of sexual contact.” The report was approved by Bullock
on February 19, 2007, and stated that the investigation “would remain active.”
Sometime thereafter, Ariaz’s attention shifted to another Explorers
participant—fifteen-year-old appellant Natasha Whitley. Ariaz began
“grooming” Whitley by giving her gifts, promoting her to the highest position in
the Explorer post, repeatedly using her as his example in class, and writing her
love notes that she kept in her Explorers locker. Ariaz’s advances grew
progressively more intimate and eventually became sexual around June 2007.
Although various individuals were aware that Ariaz was engaging in
suspicious conduct, it does not appear that Hanna learned of this until July 3,
when another member of the Brownwood Police Department, Richard Williams,
noticed Whitley driving Ariaz’s truck and questioned her. In the course of
speaking with her, Williams learned that Ariaz and Whitley drove together on
a nightly basis. Williams thereupon contacted Hanna, who resumed his
investigation and quickly confirmed that Ariaz allowed Whitley to drive his
vehicle, rode with her almost every night, and spent hours with her parked in
locations that were secluded or known “make out” areas.
On July 9, Hanna met with the Brown County District Attorney, appellee
Michael Murray, and the Brown County Sheriff, appellee Bobby Grubbs. Also
present were Brown County’s Assistant District Attorney, a District Attorney
investigator, the Brown County Chief Deputy, a sergeant with the Texas
Department of Public Safety, a Brownwood police sergeant, and members of the
West Central Interlocal Drug Task Force. The group discussed Hanna’s
investigation into Ariaz’s conduct and agreed that Hanna would continue
3
No. 12-10312
monitoring Ariaz to catch Ariaz in the act of abusing Whitley, and thus
strengthen the prosecutorial case against him. Bullock endorsed the plan after
Hanna informed him of the July 9 meeting.
Hanna proceeded to install video surveillance cameras in the hallways of
the Brownwood Annex building—one of the locations Ariaz was known to take
Whitley. Hanna also initiated GPS surveillance of Ariaz’s car. On July 10 and
11, Ariaz was observed with Whitley in the Annex building. Ariaz repeatedly
hugged and kissed Whitley. Ariaz also was observed entering an Annex building
courtroom where Whitley was waiting, and later exiting without his belt,
followed by Whitley, who emerged adjusting her shirt. Ariaz and Whitley were
known to spend lengthy periods of time in the Annex building courtroom. Hanna
informed Bullock, Murray, and Grubbs of these events.
On July 12, Hanna assembled three two-man teams to surveil Ariaz and
Whitley. Over the following days, Ariaz and Whitley repeatedly were observed
engaging in the previously documented conduct. On July 17, Hanna and another
investigator hid themselves in the closet of the courtroom Ariaz and Whitley
previously had entered. Sometime after 2:30 a.m., Hanna witnessed Whitley
sitting or lying on a table with Ariaz positioned over her. Ariaz and Whitley
then left, but returned at 6:13 a.m. Whitley lay down, and Ariaz proceeded to
kiss her for several minutes. He then placed his head in Whitley’s “crotch area,”
whereupon Hanna exited the closet and intervened. Ariaz was arrested and
indicted on more than twenty-five counts of sexual assault of a child and two
counts of indecency with a child.1 He ultimately pleaded guilty to two counts of
sexual assault of a child and no contest to indecency with a child. Ariaz
currently is serving a twenty-year prison sentence.
1
The indecency with a child counts appear related to Ariaz’s conduct with A.M. in
January 2007.
4
No. 12-10312
On November 3, 2008, Whitley’s parents filed suit in federal district court
against, among others, the City of Brownwood, the Brownwood Police
Department, the Brownwood Chief of Police, and the Boy Scouts of America, in
an action styled Whitley v. Ariaz, et al., No. 6:08-CV-85-C. That lawsuit was
dismissed upon settlement.
On August 19, 2011, Whitley herself filed suit against Hanna and Bullock,
in their individual capacities, and against Murray and Grubbs in their
individual and official capacities (collectively, “Appellees”). Whitley also sought
declaratory and injunctive relief against Appellees in their official capacities.
Her complaint primarily contended that Appellees violated her constitutional
rights by failing timely to intervene to stop Ariaz’s abuse of her.
Murray and Grubbs filed a motion to dismiss for failure to state a claim
under Federal Rule of Civil Procedure 12(b)(6) on September 13. On the same
day, Hanna and Bullock filed a separate motion to dismiss for failure to state a
claim under Rule 12(b)(6), in which they asserted qualified immunity.
Subsequently, Murray and Grubbs filed an original answer in which they also
raised a qualified immunity defense. Following the filing of Appellees’ motions
to dismiss, Whitley filed a motion to amend her complaint.
In an order entered on February 21, 2012, the district court granted both
motions to dismiss and denied Whitley’s motion to amend her complaint. The
district court began by reviewing the proposed amended complaint and
concluded that the amendments were “nothing more than reiterations of the
original § 1983 claim premised upon substantive due process rights.” The court
viewed the proposed amendments only as alleging that Appellees engaged in a
conspiracy to deprive Whitley of her constitutional rights, a claim that was not
actionable under § 1983 without an underlying constitutional violation. Further,
it found that “the proposed additional facts that [Whitley] wishes to add to her
pleadings do nothing to change the claims brought by [her].” Accordingly, the
5
No. 12-10312
district court held that granting Whitley’s motion to amend her complaint would
be futile and denied her motion.
Turning to Appellees’ motions to dismiss, the district court found that
dismissal was warranted. “At the heart of the allegations is [Whitley’s] claim
that the [Appellees] should have concluded their investigation sooner and
arrested Ariaz sooner, thus preventing further sexual acts against her.” The
court determined that Whitley’s § 1983 claims failed because there was no
constitutional right to have criminal charges filed against someone or to have
that person investigated.
The district court likewise was unpersuaded by what it construed as
Whitley’s attempts to establish supervisory liability over Appellees. First, to the
extent Appellees were involved in Ariaz’s misconduct, the district court found
that they actively were investigating him and thus their behavior did not fall
within the purview of cases that permitted claims against state actors who failed
to protect victims from harm. Second, the district court noted that Appellees did
not supervise Ariaz and actually were employed by completely separate entities.
Properly construed, the district court reasoned, Whitley’s allegations really fell
under a “state-created-danger theory,” because Appellees—as state
actors—allegedly acted with deliberate indifference in creating or increasing a
danger to her. But such a theory also requires that the state actors create an
opportunity that otherwise would not have existed, which the district court
found was not the case. Further, it noted that this circuit has declined to adopt
a state-created-danger theory to trigger affirmative duties under the Due
Process Clause. The district court thus granted Appellees’ motions to dismiss.
Whitley timely filed a notice of appeal on March 15, 2012, asserting that
the district court erroneously granted Appellees’ motions to dismiss her § 1983
claims and denied her motion to amend her complaint.
6
No. 12-10312
II. STANDARD OF REVIEW
This court reviews a district court’s grant of a motion to dismiss de novo.
Bowlby v. City of Aberdeen, Miss., 681 F.3d 215, 219 (5th Cir. 2012). The grant
of a motion to dismiss based on qualified immunity similarly is reviewed de
novo. Brown v. Miller, 519 F.3d 231, 236 (5th Cir. 2008). We accept all
well-pleaded facts as true and view those facts in the light most favorable to the
plaintiff. Bowlby, 681 F.3d at 219 (citation omitted). The facts taken as true
must, however, “state a claim that is plausible on its face.” Amacker v.
Renaissance Asset Mgmt. LLC, 657 F.3d 252, 254 (5th Cir. 2011). “A claim has
facial plausibility when the plaintiff pleads factual content that allows the court
to draw the reasonable inference that the defendant is liable for the misconduct
alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). A complaint is insufficient
if it offers only “labels and conclusions,” or “a formulaic recitation of the
elements of a cause of action.” Id. (quoting Bell Atl. Corp. v. Twombly, 550 U.S.
544, 555 (2007)).
We review a district court’s denial of a motion for leave to file an amended
complaint for abuse of discretion. City of Clinton, Ark. v. Pilgrim’s Pride Corp.,
632 F.3d 148, 152 (5th Cir. 2010). However, where a district court’s denial solely
was based on futility, this court applies a de novo standard identical, in practice,
to the standard used for reviewing a motion to dismiss for failure to state a
claim. See Wilson v. Bruks–Klockner, Inc., 602 F.3d 363, 368 (5th Cir. 2010).
III. APPLICABLE LAW
A. Section 1983
Section 1983 provides a claim against anyone who “under color of any
statute, ordinance, regulation, custom, or usage, of any State” violates another’s
constitutional rights. 42 U.S.C. § 1983. “To state a section 1983 claim, ‘a
plaintiff must (1) allege a violation of a right secured by the Constitution or laws
of the United States and (2) demonstrate that the alleged deprivation was
7
No. 12-10312
committed by a person acting under color of state law.’” James v. Tex. Collin
Cnty., 535 F.3d 365, 373 (5th Cir. 2008) (quoting Moore v. Willis Indep. Sch.
Dist., 233 F.3d 871, 874 (5th Cir. 2000)).
B. Qualified Immunity
“The doctrine of qualified immunity protects government officials from
civil damages liability when their actions could reasonably have been believed
to be legal.” Morgan v. Swanson, 659 F.3d 359, 370 (5th Cir. 2011) (en banc).
Qualified immunity protects “all but the plainly incompetent or those who
knowingly violate the law,” Malley v. Briggs, 475 U.S. 335, 341 (1986), and
courts will not deny immunity unless “existing precedent . . . placed the
statutory or constitutional question beyond debate,” Ashcroft v. al-Kidd, 131 S.
Ct. 2074, 2083 (2011). Therefore, a plaintiff seeking to overcome qualified
immunity must show: “(1) that the official violated a statutory or constitutional
right, and (2) that the right was ‘clearly established’ at the time of the
challenged conduct.” Id. at 2080 (citation omitted). A court has discretion to
decide which prong to consider first. Pearson v. Callahan, 555 U.S. 223, 236
(2009).
IV. DISCUSSION
On appeal, Whitley presents two theories of liability she asserts warrant
reversal of the district court’s decision. First, relying on our decision in Doe v.
Taylor Independent School District, 15 F.3d 443 (5th Cir. 1994) (en banc),
Whitley argues that Appellees are liable under § 1983 for acting with deliberate
indifference to her constitutional rights by engaging in an investigation
premised on catching Ariaz (the primary constitutional wrongdoer) in the act of
abusing her. Second, citing to Hale v. Townley, 45 F.3d 914 (5th Cir. 1995),
Whitley asserts that Appellees are liable under § 1983 under a theory of
bystander liability because they failed to stop Ariaz, a fellow officer, from
8
No. 12-10312
violating Whitley’s fundamental liberty interest in her bodily integrity.2 Lastly,
Whitley contends that the district court erred in denying her motion to amend
her complaint.
We address each of her theories below, and conclude that Whitley fails to
state a claim under either her deliberate indifference or bystander liability
theory.3 Our conclusion that Whitley fails to state a claim as to any of the
Appellees also resolves the question of qualified immunity raised in Hanna and
Bullock’s motion to dismiss.4 See Lytle v. Bexar Cnty., Tex., 560 F.3d 404, 410
(5th Cir. 2009) (“If we determine that the alleged conduct did not violate a
constitutional right, our inquiry ceases because there is no constitutional
violation for which the government official would need qualified immunity.”);
2
Whitley also asserts that she has sufficiently stated a constitutional violation under
Rochin v. California, because Appellees’ conduct shocked the conscience. See 342 U.S. 165,
166, 172–74 (1952) (conduct “shock[ed] the conscience” and violated the Due Process Clause
where arresting police officers ordered doctors to pump suspect’s stomach to induce him to
vomit two morphine capsules). During oral argument, Whitley expressly limited the grounds
on which she sought relief and it thus is unclear whether she is still pursuing a claim under
Rochin’s shocks-the-conscience standard.
As will be discussed, however, the alleged facts do not rise to the level of shocking the
conscience: Whitley has not alleged that Appellees themselves sexually abused her; at best, she
has shown that Appellees conducted a deficient investigation and failed to intervene earlier.
Such circumstances do not conform to the extreme cases in which the shocks-the-conscience
standard typically has been satisfied. See, e.g., Morris v. Dearborne, 181 F.3d 657, 668 (5th
Cir. 1999) (teacher fabricated sexual abuse charges against a student’s father); Rogers v. City
of Little Rock, Ark., 152 F.3d 790, 797 (8th Cir. 1998) (police officer raped woman in her house
after stopping her for traffic violation).
3
To the extent Whitley asserts claims against Appellees in their official capacities, we
find such claims also fail for lack of an underlying constitutional violation. See Piotrowski v.
City of Houston, 237 F.3d 567, 578 (5th Cir. 2001) (municipal liability under § 1983 requires
“a policymaker; an official policy; and a violation of constitutional rights whose ‘moving force’
is the policy or custom.” (citation omitted)).
4
The district court seemingly conflated Appellees’ motions to dismiss as “Motions to
Dismiss Based Upon Qualified Immunity,” despite only Hanna and Bullock asserting qualified
immunity in their motion. Importantly, however, the district found that Whitley “failed to
state a claim under § 1983 against the [Appellees], and certainly not such that would overcome
their assertion of qualified immunity.” Accordingly, it appears that the district court
sufficiently addressed both motions to dismiss.
9
No. 12-10312
Hampton v. Oktibbeha Cnty. Sheriff Dep’t, 480 F.3d 358, 363 (5th Cir. 2007).
Finally, we hold that the district court correctly denied Whitley’s motion to
amend her complaint.
A. Deliberate Indifference
Whitley’s first basis for establishing liability under § 1983 is “the decision
by [Appellees] as part of their investigation, to knowingly allow Whitley to be
repeatedly raped by another police officer.” Put another way, Appellees
purportedly acted with deliberate indifference by agreeing on a plan that would
allow Ariaz to continue sexually abusing Whitley for the sake of gathering
additional evidence to secure his conviction.5 In support, Whitley primarily
relies on our decision in Taylor, 15 F.3d 443.6
In Taylor, we considered whether a school’s principal and the district’s
superintendent could be held liable under § 1983 for failing to prevent a high
school coach from manipulating a fifteen-year-old student over several months
into repeatedly having sexual intercourse with him. Id. at 446–49. In affirming
5
Whitley’s allegations resemble—and the district court actually understood her to
assert—a claim under a state-created-danger theory of liability, by which state actors may be
held liable when “the state actor played an affirmative role in creating or exacerbating a
dangerous situation that led to the individual’s injury.” McClendon v. City of Columbia, 305
F.3d 314, 324 (5th Cir. 2002). Given Whitley’s allegation that Appellees put her in harm’s way
in order to secure Ariaz’s conviction, the district court’s interpretation is understandable.
However, this court has not adopted the state-created-danger theory, Doe ex rel. Magee v.
Covington Cnty. Sch. Dist. ex rel. Keys, 675 F.3d 849, 865 (5th Cir. 2012) (en banc), and
Whitley wisely has disclaimed reliance on it.
6
Whitley also relies on the Supreme Court’s decision in Pembaur v. City of Cincinnati,
475 U.S. 469 (1986). Whitley first refers to this case in her reply brief and then only for the
proposition that “a § 1983 case should not be dismissed when the allegation is that a
prosecutor and police officers made decisions and carried out actions as part of a criminal
investigation that violated constitutional rights.” The problem with Whitley’s argument is that
it assumes the very thing she seeks to prove—that it was a constitutional violation for
Appellees to delay removing Whitley from Ariaz’s presence to collect additional evidence. By
contrast, the county prosecutor in Pembaur ordered deputy sheriffs to forcibly enter a clinic in
violation of a doctor’s Fourth Amendment rights. Id. at 484.
10
No. 12-10312
the district court’s denial of qualified immunity to the principal, but reversing
the denial of qualified immunity to the superintendent, we held that:
A supervisory school official can be held personally liable for a
subordinate’s violation of an elementary or secondary school
student’s constitutional right to bodily integrity in physical sexual
abuse cases if the plaintiff establishes that:
(1) the defendant learned of facts or a pattern of inappropriate
sexual behavior by a subordinate pointing plainly toward the
conclusion that the subordinate was sexually abusing the
student; and
(2) the defendant demonstrated deliberate indifference toward
the constitutional rights of the student by failing to take
action that was obviously necessary to prevent or stop the
abuse; and
(3) such failure caused a constitutional injury to the student.
Taylor, 15 F.3d at 454.
Subsequently, in Doe v. Rains County Independent School District, 66 F.3d
1402 (5th Cir. 1995), we expanded our holding in Taylor to include non-
supervisory state officers. We determined that “once . . . a constitutional
violation has occurred, we are no longer barred from finding another person
liable under § 1983 for committing a state-law breach that caused the
constitutional injury, even if the breach itself does not independently satisfy the
elements of a constitutional claim.” Id. at 1409. We reached this conclusion by
“ask[ing] what it is about a supervisor’s duties and functions that renders a state
supervisory official liable for a constitutional deprivation by a subordinate.” Id.
at 1410. We concluded that “it is state law’s grant of a right of legal control over
the immediate perpetrator of an injury that establishes that a state supervisor
possessed and exercised state authority.” Id. at 1413. The “critical question” in
determining whether a non-supervisory state actor may be held liable thus is
“whether state law has reposed in a defendant enough responsibility for the
underlying conduct that she can be said to have caused the injury herself.” Id.
at 1408.
11
No. 12-10312
Accordingly, Whitley must show that (1) Appellees knew of a pattern of
constitutional deprivations; (2) the abuse was caused by a state actor over whom
they had supervisory authority or a state-law created right of legal control; (3)
Appellees’ failure to act demonstrated deliberate indifference to the victim’s
constitutional rights; and (4) their failure to act resulted in a constitutional
injury. Because we conclude that Appellees were not deliberately indifferent, we
limit our analysis to the third element, and hold that Whitley’s § 1983 claims fail
under her deliberate indifference theory.7
“The deliberate indifference standard is a high one.” Doe v. Dall. Indep.
Sch. Dist., 153 F.3d 211, 219 (5th Cir. 1998). “To act with deliberate
indifference, a state actor must ‘know[] of and disregard[] an excessive risk to
[the victim’s] health or safety.’” McClendon, 305 F.3d at 326 n.8 (alterations in
original) (quoting Farmer v. Brennan, 511 U.S. 825, 837 (1994)). “The state
actor’s actual knowledge is critical to the inquiry”—a “failure to alleviate ‘a
significant risk that he should have perceived but did not,’ while ‘no cause for
7
Although disposing of this case on deliberate-indifference grounds, we note that
Appellees seriously call into question whether law enforcement officers in cases like the one
sub judice can be said to have what we term “the linchpin in all cases in which we have found
§ 1983 liability based on breach of a duty to act” namely, “the existence of a legal right of
control,” i.e., state-conferred control “over the persons or events giving rise to the injury
complained of.” Rains, 66 F.3d at 1414–15; see also Taylor, 15 F.3d at 452 n.6 (the “mere right
to control without any control or direction having been exercised and without any failure to
supervise is not enough to support § 1983 liability” (quoting Monell v. Dep’t of Soc. Servs., 436
U.S. 658, 694 n.58 (1978)). Appellees forcefully argue that the Supreme Court’s decision in
Town of Castle Rock v. Gonzales, entirely forecloses Whitley’s deliberate indifference theory of
liability because, although Gonzales denied an individual’s purported entitlement to police
enforcement of a restraining order against a private party, the same principle should apply
where the violative agent is a state actor. See 545 U.S. 748, 768 (2005) (“In light of today’s
decision . . . the benefit that a third party may receive from having someone else arrested for
a crime generally does not trigger protections under the Due Process Clause, neither in its
procedural nor in its ‘substantive’ manifestations.”). To do otherwise, they assert, would
deprive law enforcement officers of the very discretion the Supreme Court repeatedly has
recognized them to possess. See id. at 760 (“A well established tradition of police discretion has
long coexisted with apparently mandatory arrest statutes.”). Expressing no opinion, we leave
for another day the extent to which Gonzales supplements or supplants our analysis under
Rains.
12
No. 12-10312
commendation,’ does not rise to the level of deliberate indifference.” Id. (quoting
Farmer, 511 U.S. at 837). While we previously have observed that the terms
“gross negligence” and “deliberate indifference” are sometimes used
interchangeably, understood properly, “the former is a ‘heightened degree of
negligence,’ [while] the latter is a ‘lesser form of intent.’” Taylor, 15 F.3d at 453
n.7 (citation omitted).
In this case, the district court found that Appellees did not act with
deliberate indifference because they were “acting on facts and investigating
Ariaz.” Whitley contends that the district court’s finding was erroneous because
Appellees’ investigation clearly was flawed, and identifies multiple indicators
Appellees had that Ariaz—even before meeting Whitley—was engaging in sexual
misconduct. Whitley also highlights purported deficiencies in the investigation
itself.
We agree with the district court that neither Hanna and Bullock, nor
Grubbs and Murray, were deliberately indifferent.
1. Hanna and Bullock
a) Hanna
We begin our analysis by considering Hanna’s investigation, which, while
possibly subject to criticism and charges of deficiency, cannot be said to have
been conducted with deliberate indifference. Hanna began investigating Ariaz
in January 2007, and spoke with A.M., A.M.’s mother, and her boyfriend.
Although the investigation did not, at that time, result in the arrest and
prosecution of Ariaz, the investigation remained open.
Over the next several months, there were numerous incidents indicating
that Ariaz’s attention had shifted to a new victim—Whitley. Ariaz repeatedly
used Whitley as his example in class, and made her his Explorers captain. He
also ate with Whitley in view of other Brownwood Police Department officers.
It apparently was well-known that Ariaz and Whitley would ride together during
13
No. 12-10312
the night shift. But while the Brownwood Police Department may have been
aware of Ariaz’s conduct, Hanna was not. Hanna had no reason to think that
the Brownwood Police Department, as Ariaz’s supervisor, would fail to respond
to evidence that Ariaz again was targeting a minor, including sharing such
evidence with Hanna.8
Hanna’s failure to discover Ariaz’s new relationship earlier thus is no
ground for finding him deliberately indifferent. In Taylor, we found a school
superintendent not deliberately indifferent partly because he reacted promptly
to new evidence of a high school coach’s sexual misconduct. 15 F.3d at 457–58.
Similarly here, when Hanna received word that Ariaz again was seen with a
minor, he immediately resumed his investigation. From that point on, Hanna
undertook a series of measures that appropriately responded to the evidence
available to him, including:
• learning that Ariaz was riding with Whitley almost every night, and
allowing her to drive his vehicle;
• discovering that Ariaz, accompanied by Whitley, would park for two to
three hours in remote areas such as the Brownwood airport, a wooded
area by the Brownwood Hospital, and an old police department;
• meeting with Murray, the Brown County District Attorney, and Grubbs,
the Brown County Sheriff, and others to discuss Ariaz’s behavior;
• installing video surveillance cameras in the Brownwood Annex building,
one of the isolated locations Ariaz was known to take Whitley;
• placing GPS surveillance on Ariaz’s vehicle, despite Ariaz previously
having requested vehicles without GPS tracking;
• assembling three two-man teams to surveil Ariaz and Whitley;
• organizing a sting operation that resulted in the arrest and prosecution of
Ariaz.
8
We again note that the Brownwood Police Department would later be involved in a
suit brought by Whitley’s parents resulting in a settlement.
14
No. 12-10312
Whereas Hanna’s previous investigation into Ariaz did not result in a
prosecution, Hanna’s actions upon learning that Ariaz was seen with Whitley
demonstrate that, while the Brownwood Police Department apparently had been
unable to stop Ariaz, Hanna was committed to putting an end to Ariaz’s abuses
once and for all.
Whitley criticizes various aspects of Hanna’s investigation, but these do
not amount to a showing of deliberate indifference. She accuses Hanna of
improperly placing surveillance cameras in the Brownwood Annex building’s
hallways, instead of in its courtroom. But the mere “haphazard” or “negligent”
deployment of security measures does not establish deliberate indifference.
Johnson v. Dall. Indep. Sch. Dist., 38 F.3d 198, 202 (5th Cir. 1994). Whitley also
criticizes Hanna for conducting an excessively long investigation. Yet, in light
of Ariaz’s persistent conduct, even in the face of other members of the
Brownwood Police Department knowing of the suspicious activity, we cannot
fault Hanna for wanting to ensure that this time the investigation would
conclude with Ariaz’s successful prosecution. At most, Whitley has shown that
Hanna’s actions were comparable to those of Taylor’s superintendent. After
observing that the superintendent had directed the principal to talk with the
coach suspected of sexual abuse, contacted parents, spoken with the victim, and
verbally reprimanded the coach, we determined that although the
superintendent’s actions had been “ineffective,” they were not “deliberately
indifferent.” 15 F.3d at 457–58. As in that case, although we do not deny the
possibility that Hanna could have conducted the investigation differently,
perhaps even gathering enough evidence to make an arrest in less than the two
weeks it took him, Hanna’s failure to immediately end the abuse does not make
him deliberately indifferent. See Dall. Indep. Sch. Dist., 153 F.3d at 219
(“Actions and decisions by officials that are merely inept, erroneous, ineffective,
15
No. 12-10312
or negligent do not amount to deliberate indifference and thus do not divest the
official of qualified immunity.”).9
Hanna had to decide what evidence would suffice to secure a conviction.
His decision to wait two or three days longer to make a stronger case to
permanently stop Ariaz’s misconduct does not bring this case within Taylor’s fact
pattern, where we denied qualified immunity to a school principal on the ground
that he “fail[ed] to take action that was obviously necessary to prevent or stop”
the sexual misconduct of a subordinate high school coach. 15 F.3d at 457. Far
from failing to take action, Hanna led an ongoing effort to put Ariaz out of
business. In this, Hanna was successful. His failure to be successful earlier does
not make him deliberately indifferent to Whitley’s plight.
Whitley also appears, however, to allege that Hanna was deliberately
indifferent because he failed to intervene when Ariaz sexually abused her in
Hanna’s presence. This argument refers to Hanna’s failure immediately to
emerge from his courtroom hiding place upon witnessing Ariaz positioned atop
her the morning of July 17, 2007. We find it worthwhile to quote this part of
Whitley’s complaint in its entirety:
9
Instead of looking to whether Hanna’s conduct was appropriate in light of the
available evidence, see Rains, 66 F.3d at 1413 (school official “fail[ed] to take appropriate action
to prevent or stop the abuse”); Taylor, 15 F.3d at 458 (superintendent “responded
appropriately”), the concurrence instead would look to whether “the purpose of [the
defendant’s] actions was to interfere with the alleged abuse,” and criticizes us for suggesting
that Hanna faced a “binary choice: arrest Ariaz, or do nothing to intervene in the absence of
conclusive evidence of abuse.” We do not dispute that Appellees had other options available
to them, but we refuse to find Appellees deliberately indifferent for choosing one permissible
course of action—conducting an investigation intended to effectuate the arrest of Ariaz—over
another. Cf. Taylor, 15 F.3d at 457–58 (describing superintendent’s investigation into alleged
abuse as sufficient based on the available evidence); Atteberry v. Nocona Gen. Hosp., 430 F.3d
245, 256 (5th Cir. 2005) (deliberate indifference sufficiently alleged where defendants allegedly
knew that a dangerous drug was missing and patients were dying at an unusually high rate,
but failed to investigate or change hospital policy). Even applying the concurrence’s standard,
and accepting that better policing might have led to a speedier conclusion to the investigation,
we are hard-pressed to see how the arrest and prosecution of Ariaz cannot be said to have had
the purpose of “interfer[ing] with” the alleged abuse.
16
No. 12-10312
• At approximately 2:30 a.m. on July 17, 2007, Hanna hid in
the courtroom’s closet with another investigator.
• He observed [Whitley] sitting or lying on a table with Ariaz
positioned over her in a clearly inappropriate and sexual
manner.
• Yet Hanna still did not intervene.
• Instead, he let Ariaz continue and then let them leave.
• According to Hanna, he remained at the Annex so that he
would be more ready the next time to catch Ariaz in the midst
of a more prolonged act.
• Then, according to Hanna, Ariaz and [Whitley] arrived back
at the Annex at 6:13 a.m. Ariaz began kissing [Whitley] in the
courtroom for several minutes while [Whitley] was lying
down. Then, Hanna observed him place his head in
[Whitley’s] “crotch area.”
Whitley’s proposed amended complaint, which we separately address
infra, elaborates only slightly on these facts: “[Hanna] observed Plaintiff sitting
or lying on a table with Ariaz positioned over her in a clearly inappropriate and
sexual manner. Ariaz was touching Plaintiff’s genitalia.” Hanna ultimately
emerged and arrested Ariaz when he observed Ariaz placing his head in
Whitley’s genital area after the two returned at 6:13 a.m.
Several aspects of Whitley’s complaint, as well as the relevant parts of her
proposed amended complaint, draw our attention. Although Whitley’s brief
repeatedly describes Appellees as exposing Whitley to statutory rape (even going
so far as accusing them of effectively raping Whitley herself by failing to act), the
closest Hanna came to actually seeing Ariaz sexually abuse Whitley was to
observe her sitting or lying while Ariaz was positioned over her. Whitley does
not describe what Ariaz was doing other than to say it was “clearly
inappropriate” and done in a “sexual manner.” Additionally, while specifically
describing what Hanna observed in every part of her complaint, Whitley
noticeably omits in her proposed amended complaint whether or not Hanna
17
No. 12-10312
observed Ariaz touching her genitals.10 Hanna apparently could not even see
whether Whitley was sitting or lying down.
While we must view the facts in the light most favorable to Whitley, we
also cannot ignore what she has, and has not, pled. Nor can we ignore that
Hanna, after tracking Ariaz by camera, GPS, and officer surveillance, emerged
from cover to arrest Ariaz after observing him engage in a clearly sexual act.
Whitley may have alleged facts sufficient to show that Hanna made an error of
judgment, but we refuse to find that Hanna’s failure to act, after viewing some
unspecified conduct that was “clearly inappropriate,” transformed his otherwise
proper investigation into one that was deliberately indifferent. See Callis v.
Sellars, 931 F. Supp. 504, 519 (S.D. Tex. 1996) (officers’ failure to timely
intervene in sting operation amounted to isolated instance of negligence or error
of judgment that did not amount to deliberate indifference).
Whitley thus has failed to allege facts sufficient to show that Hanna was
deliberately indifferent.
b) Bullock
Having found that Hanna did not act deliberately indifferent, we similarly
conclude that Whitley has not demonstrated that Bullock was deliberately
indifferent in entrusting the investigation to Hanna. As with Hanna, the
Brownwood Police Department’s failure to notify the Texas Rangers of Ariaz’s
renewed involvement with a minor cannot be imputed to Bullock. Indeed,
Bullock’s involvement in the investigation was limited to receiving updates from
Hanna on how the investigation was progressing, and approving Hanna’s
continuation of that investigation. Bullock was not even involved in the meeting
in which Hanna, Murray, and Grubbs discussed Ariaz, and which resulted in the
10
The proposed amended complaint also states that Ariaz “had his hand in [Whitley’s]
crotch area for several minutes while [she] was lying down,” but again does not state that
Hanna could observe this conduct.
18
No. 12-10312
decision to continue surveilling Ariaz until there was actual evidence of sexual
abuse. Whitley has alleged no facts suggesting that Bullock knew Hanna was
acting improperly in seeking to collect additional evidence, especially as the prior
investigation into Ariaz’s conduct towards A.M. had not resulted in a
prosecution. Whitley thus also has failed to show that Bullock was deliberately
indifferent.
2. Grubbs and Murray
Whitley’s primary reason for claiming Grubbs and Murray acted with
deliberate indifference is that they participated in formulating, and endorsed,
a plan dependent on catching Ariaz in the act of committing an act of sexual
abuse. However, far from being the product of deliberate indifference, this plan
was responsive to the requirements of the Texas penal code. Ariaz eventually
was charged with sexual assault of a child and indecency with a child. Under
Texas law, the crime of sexual assault requires sexual contact or penetration.
Tex. Penal Code Ann. § 22.011(a)(1)–(2). Similarly, the offense of indecency with
a child requires exposure or “sexual contact,” defined as “(1) any touching by a
person, including touching through clothing, of the anus, breast, or any part of
the genitals of a child; or (2) any touching of any part of the body of a child,
including touching through clothing, with the anus, breast, or any part of the
genitals of a person.” Id. § 21.11. Video evidence only showed Ariaz hugging
and kissing Whitley, actions which Appellees could not be certain a jury would
find sufficient to violate the applicable criminal statutes. As Whitley
acknowledges, Appellees only “had video proof that [Whitley] was likely being
abused.”
Grubbs and Murray also did not ignore Whitley’s plight—to the contrary,
they agreed that Hanna would investigate allegations of Ariaz’s sexual
misconduct in order to prosecute Ariaz. They were aware that Hanna was
pursuing the investigation by setting up surveillance cameras, tracking Ariaz’s
19
No. 12-10312
movements, and devoting three two-man teams to surveilling him. Moreover,
Grubbs and Murray were not telling Hanna to allow Ariaz to abuse Whitley, but
rather to gather evidence and stop Ariaz from doing so. Although Whitley
alleges that, based on the evidence available to them, Grubbs and Murray must
have known that Ariaz was sexually abusing her, there is no allegation that they
actively facilitated Ariaz’s behavior in order to gather more evidence.
Accordingly, although the decision to gather additional evidence may have
been imprudent in light of that already available, we cannot say that Grubbs
and Murray were deliberately indifferent to Whitley’s peril. It is unclear, for
example, what they should have done that was any more certain to safeguard
Whitley’s well-being or result in a favorable outcome to the investigation. They
did not supervise Ariaz. They also did not have the authority to order the
Brownwood Police Department to remove Ariaz from duty. At oral argument,
Whitley’s counsel admitted that Appellees, including Grubbs and Murray, also
lacked the power to end the Explorers program. Further, while Grubbs and
Murray arguably had the power to effectuate the arrest of Ariaz earlier in the
investigation, Whitley has made clear that she is not premising her claim on
Appellees’ arresting Ariaz. Thus, although we easily can imagine some
alternatives to the choice that Appellees made—including confronting Whitley
or contacting her parents—the fact remains that Appellees successfully brought
about Ariaz’s arrest approximately two weeks after Hanna first learned of a
potential relationship between Ariaz and Whitley.
We conclude that Whitley has not alleged facts sufficient to establish that
Grubbs and Murray acted with deliberate indifference.
B. Bystander Liability
Whitley’s second basis for establishing liability under § 1983 is Appellees’
“failure . . . to attempt to intercede to protect [her] from further abuse at the
hands of another officer.” Whitley cites this court’s decision in Hale, 45 F.3d 914,
20
No. 12-10312
for the proposition that Appellees were required to intervene and stop Ariaz from
further sexually abusing her.
In Hale, a plaintiff brought a § 1983 action for, inter alia, the use of
excessive force during a search and arrest. Id. at 916. One of the police officer
defendants allegedly stood by, laughed, and shouted encouragement while
another officer assaulted the plaintiff. Id. at 919. Characterizing the plaintiff’s
claim as one of bystander liability, this court agreed that “an officer who is
present at the scene and does not take reasonable measures to protect a suspect
from another officer’s use of excessive force may be liable under section 1983.”
Id. We further observed that the fact that the police officers “were from different
law enforcement agencies does not as a matter of law relieve [an officer] from
liability for a failure to intervene.” Id. In light of the allegations and evidence
in that case, we concluded that there was sufficient evidence to create a genuine
issue of material fact concerning the bystanding officer’s “acquiescence in the
alleged use of excessive force.” Id.
Our holding in Hale is consistent with other circuits’ determination that
an officer may be liable under § 1983 under a theory of bystander liability where
the officer “(1) knows that a fellow officer is violating an individual’s
constitutional rights; (2) has a reasonable opportunity to prevent the harm; and
(3) chooses not to act.”11 Randall v. Prince George’s Cnty., Md., 302 F.3d 188, 204
(4th Cir. 2002) (footnote omitted); see, e.g., Lewis v. Downey, 581 F.3d 467, 472
(7th Cir. 2009); Smith v. Mensinger, 293 F.3d 641, 650–51 (3d Cir. 2002); see also
11
Although Hale most often applies in the context of excessive force claims, other
constitutional violations also may support a theory of bystander liability. See Richie v.
Wharton Cnty. Sheriff Dep’t Star Team, No. 12-20014, 2013 WL 616962, at *2 (5th Cir. Feb.
19, 2013) (per curiam) (unpublished) (noting that plaintiff failed to allege facts suggesting that
officers “were liable under a theory of bystander liability for failing to prevent . . . other
member[s] from committing constitutional violations”); accord Anderson v. Branen, 17 F.3d
552, 557 (2d Cir. 1994) (“[A]ll law enforcement officials have an affirmative duty to intervene
to protect the constitutional rights of citizens from infringement by other law enforcement
officers in their presence.”).
21
No. 12-10312
Nowell v. Acadian Ambulance Serv., 147 F. Supp. 2d 495, 507 (W.D. La. 2001).
However, liability will not attach where an officer is not present at the scene of
the constitutional violation.12 See Snyder v. Trepagnier, 142 F.3d 791, 801 n.11
(5th Cir. 1998) (citing Hale, 45 F.3d at 919); see also Gilbert v. French, 364 F.
App’x 76, 83 (5th Cir. 2010) (per curiam) (unpublished); Ibarra v. Harris Cnty.
Tex., 243 F. App’x 830, 835 & n.8 (5th Cir. 2007) (per curiam) (unpublished) (“A
bystander liability claim requires the plaintiffs to show that the officer was
present at the scene and did not take reasonable measures to protect a suspect
from excessive force.”). In resolving whether a plaintiff has sufficiently alleged
a bystander liability claim we also consider whether an officer “acquiesce[d] in”
the alleged constitutional violation. Hale, 45 F.3d at 919; see Baker v. Monroe
Twp., 50 F.3d 1186, 1193–94 (3d Cir. 1995) (premising liability on senior officer’s
knowledge of, and acquiescence in, treatment of victim); see also Peavy v. Dall.
Indep. Sch. Dist., 57 F. Supp. 2d 382, 390 n.4 (N.D. Tex. 1999) (Hale inapplicable
where defendant did not acquiesce in any conduct violating plaintiff’s
constitutional rights).
Applying this analysis to each of the Appellees, Whitley has failed to state
a claim of bystander liability.
1. Hanna and Bullock
12
Whitley disputes that this is a requirement for bystander liability. In support,
Whitley’s counsel referred us during oral argument to a case not cited in Whitley’s
briefs—United States v. McKenzie, 768 F.2d 602 (5th Cir. 1985). In that case, defendant police
officers appealed their convictions for conspiring to deprive citizens of their civil rights and for
illegally depriving one victim of his liberty, as well as failing to keep him free from harm while
in official custody. Id. at 604. In addressing whether the evidence was sufficient to support
a jury’s guilty verdict as to one defendant, we observed that the defendant “admitted that he
was in and out of the room while [the victim] was being interrogated,” and found that this was
“sufficient to support the conclusion that he was aware of what was transpiring and did not
stop it.” Id. at 605. McKenzie, however, was a criminal case and did not address bystander
liability. Moreover, the detective in that case was in and out of the room, and thus arguably
could be said to have been present while the alleged constitutional violation took place. See
id.
22
No. 12-10312
We observe at the outset that Whitley has failed to state a claim against
Bullock because she has not alleged that he was in Ariaz’s presence when Ariaz
was sexually abusing Whitley. As a result, Bullock is not within the scope of a
bystander liability claim. See Hale, 45 F.3d at 919; Ibarra, 243 F. App’x at 835
& n.8. Even were we merely to require knowledge, Bullock still would not be
liable because he acted reasonably in entrusting Hanna with investigating and
arresting Ariaz.
Turning to Hanna, although Whitley has alleged that Hanna was in
Ariaz’s presence (unbeknownst to Ariaz) the morning of July 17, she
nevertheless has failed to state a claim because she has not alleged that Hanna
acquiesced in Ariaz’s conduct. Hanna was investigating Ariaz with the intent
of gathering evidence to secure Ariaz’s conviction for sexual abuse of a minor.
Far from being a bystander to Ariaz’s conduct, Hanna was accumulating
evidence for Ariaz’s prosecution. This is in no way comparable to the factual
scenario in Hale, where there was a genuine dispute over whether an officer’s
laughing and shouting encouragement to another officer who was committing a
constitutional violation constituted acquiescence in the latter’s conduct. Hanna’s
subsequent arrest of Ariaz after Ariaz began to engage in a clearly sexual act
dispels all doubt as to whether Hanna acquiesced in Ariaz’s misconduct. Cf.
Randall, 302 F.3d at 204 n.24 (“The rationale underlying the bystander liability
theory is that a bystanding officer, by choosing not to intervene, functionally
participates in the unconstitutional act of his fellow officer.”).
Accordingly, we reject Whitley’s bystander liability claims against Hanna
and Bullock.13
13
Even if bystander liability did apply, we nevertheless would be compelled to affirm
the district court’s judgment as to Hanna and Bullock on the second prong of the qualified
immunity analysis because Whitley has failed to identify clearly established law requiring an
officer immediately to intervene while engaged in covert surveillance of a perpetrator. See
Kinney v. Weaver, 367 F.3d 337, 350 (5th Cir. 2004) (en banc) (central concept of second prong
23
No. 12-10312
2. Grubbs and Murray
Like Bullock, neither Grubbs nor Murray was in Ariaz’s presence during
Ariaz’s abusive conduct. They thus also are not bystanders for purposes of a
bystander liability claim. See Hale, 45 F.3d at 919; Ibarra, 243 F. App’x at 835
& n.8. Further, they acted reasonably in attempting to stop Ariaz from further
abusing Whitley and other minors by endorsing a plan that would lead to the
arrest of Ariaz. As discussed supra, it is unclear exactly what other actions
Whitley would have required from Grubbs and Murray that were more certain
to permanently remove her and others from Ariaz’s reach.
For these reasons, we reject Whitley’s bystander liability claims as to
Grubbs and Murray.
C. Motion to Amend the Complaint
Rule 15 of the Federal Rules of Civil Procedure provides that leave to
amend should be freely given “when justice so requires.” Fed. R. Civ. P. 15(a)(2).
A motion to amend ordinarily should be granted absent some justification for
refusal. Foman v. Davis, 371 U.S. 178, 182 (1962).
The liberal amendment policy underlying Rule 15(a) affords the
court broad discretion in granting leave to amend and,
consequently, a motion for leave to amend should not be denied
unless there is “undue delay, bad faith or dilatory motive on the part
of the movant, repeated failure to cure deficiencies by amendments
of qualified immunity analysis is whether law provided “fair warning” that the conduct at issue
violated constitutional rights). Whitley cites no case that would put Appellees on notice that
they were required to intervene in some unspecified way before arresting Ariaz. Cf. Callis, 953
F. Supp. at 799 (S.D. Tex. 1996) (“Even today, the application of the doctrine of bodily integrity
to voluntary civilian participants in a ‘sting’ is an untrodden area of the law.”). The only case
she cites is Hale, but, as discussed, that case is factually inapposite. See 45 F.3d at 919; see
also Deshotels v. Marshall, 454 F. App’x 262, 264, 269 (5th Cir. 2011) (per curiam)
(unpublished) (distinguishing facts in Hale from case in which law enforcement officers failed
to stop another officer from using a stun weapon to subdue an arrestee the officers were
attempting to restrain). We do not find that Hale put Hanna and the other Appellees on notice
that they could not solidify their evidence against Ariaz to secure a conviction by surveilling
him and arresting him upon commission of a felony.
24
No. 12-10312
previously allowed [or] undue prejudice to the opposing party by
virtue of allowance of the amendment, . . .”
United States ex rel. Willard v. Humana Health Plan of Tex. Inc., 336 F.3d 375,
386 (5th Cir. 2003) (alteration in original) (citation omitted). Leave to amend
also may be denied when amendment would be futile. Id. at 387.
We find that, even under Rule 15’s liberal standard, the district court
appropriately denied as futile Whitley’s motion to amend her complaint. First,
the amended complaint adds no new substantive factual allegations. As already
discussed, even if we read her complaint to allege that Hanna witnessed Ariaz
sexually abusing Whitley, liability would not extend to Hanna—nor the other
Appellees because Hanna was not deliberately indifferent and did not acquiesce
in Ariaz’s conduct.
Second, the amended complaint’s new causes of action are meritless.
Whitley adds supervisory liability claims, including for inadequate supervision
and failure to train. She also adds policy, custom, and practice claims, alleging,
inter alia, that it was “the practice of the Texas Rangers to permit minor sexual
assault victims to be used as bait to catch their assailants.” Finally, the
amended complaint adds a series of “Secondary Liability Claims” including
“Assisting and Encouraging / Aiding and Abetting sexual abuse and invasions
of bodily integrity,” “Assisting and Participating in violations of bodily integrity
and sexual abuse,” and “Conspiracy to violate Plaintiff’s right to be free from
violations of her bodily integrity and . . . sexual abuse,” all in violation of § 1983.
All of Whitley’s inadequate supervision, failure to train, and policy,
practice, or custom claims fail without an underlying constitutional violation.
See Bustos v. Martini Club, Inc., 599 F.3d 458, 467 (5th Cir. 2010) (“Because
[plaintiff] has alleged no constitutional injury attributable to the Officers,
[plaintiff] has failed to state a claim that a City policy was the moving force
behind a violation of his constitutional rights.”). Even if we assume that Whitley
25
No. 12-10312
has sufficiently alleged a § 1983 claim, her municipal liability claims still would
fail. “To establish municipal liability under § 1983, a plaintiff must show that
(1) an official policy (2) promulgated by the municipal policymaker (3) was the
moving force behind the violation of a constitutional right.” Peterson v. City of
Fort Worth, Tex., 588 F.3d 838, 847 (5th Cir. 2009). The proposed amended
complaint makes no specific factual allegations of the county’s policies and
simply adds the words “policies, practices, and/or customs” to Whitley’s perceived
wrongs. Such allegations are insufficient to survive dismissal. See Spiller v.
City of Tex. City, Police Dep’t, 130 F.3d 162, 167 (5th Cir. 1997) (conclusory
description of policy or custom insufficient).
Her secondary liability claims similarly fail for lack of a § 1983 violation
by Appellees. See Hale, 45 F.3d at 920 (“[A] conspiracy claim is not actionable
without an actual violation of section 1983.” (internal quotation marks and
citation omitted)). Additionally, her aiding and abetting, assisting and
participating, and conspiracy claims merely restate her § 1983 allegations. For
the same reasons we are unpersuaded by her § 1983 claims, we also reject her
secondary liability claims.
We agree with the district court that amendment of her complaint would
be futile and that Whitley’s motion to amend correctly was denied.
V. CONCLUSION
For the aforementioned reasons, the district court’s judgment is
AFFIRMED.
26
No. 12-10312
JENNIFER WALKER ELROD, Circuit Judge, concurring only in the judgment:
I write separately to address Whitley’s § 1983 deliberate-indifference claim
against Ranger Hanna. Taking Whitley’s allegations as true, Hanna made a
conscious decision to allow a fifty-five-year-old law enforcement official to engage
in predictable, preventable, and yet repeated sexual assaults on a fifteen-
year-old participant in a law-enforcement-learning program. Thus, at this early
stage of the case, I would hold that Whitley states a plausible § 1983 claim. I
concur in the judgment, however, because Whitley cannot overcome Hanna’s
assertion of qualified immunity.
I.
We must take Whitley’s allegations as true at this 12(b)(6) stage of the
case. Bowlby v. City of Aberdeen, 681 F.3d 215, 219 (5th Cir. 2012). Although
the majority opinion offers a careful and thorough description of the complaint,
some critical points bear repeating and, in some respects, reframing in the light
most favorable to Whitley.
By January 2007, Hanna knew that Ariaz was a threat to the young
female participants in the Explorer program. Although Hanna obtained credible
evidence that Ariaz had kissed, fondled, sent numerous sexually suggestive text
messages to, and expressed an intent to engage in “several different sexual acts”
with his first victim (A.M.), Whitley alleges that Hanna “essentially stopped
investigating.” Over the next several months, Whitley asserts that Hanna did
nothing “to protect any of the young girls Ariaz was supervising.”
Shortly after A.M.’s complaint, Ariaz began “grooming” Whitley, a fifteen-
year old Explorer student, to be his next victim. The relationship turned sexual
in June 2007. Whitley alleges that, had Hanna “actually investigated Ariaz . . .
[he] would have learned what Ariaz was up to and would have prevented him
from abusing” her. But Hanna did not, in fact, learn of Ariaz’s conduct until
July 3, 2007, when an officer with the Brownwood Police Department reported
27
No. 12-10312
suspicious activity. Hanna quickly confirmed that Ariaz was “spending hours
at a time alone with [Whitley] in the middle of the night,” often parked in known
“make out” areas. Yet, says Whitley, Hanna did not seek “to separate the
predator from his prey.”
To the contrary, Hanna decided to continue monitoring Ariaz to “catch him
in the act of abuse.” To accumulate evidence for an eventual prosecution, Hanna
and a Brownwood officer placed a GPS-tracking device on Ariaz’s car and
installed surveillance cameras in the hallways of the Brownwood Annex, a
common meeting place for Whitley and Ariaz. By July 12, 2007, Hanna had
“video proof that [Whitley] was likely being abused.” Specifically, Hanna
observed Ariaz kissing and hugging Whitley several times in the Annex hallway,
entering a courtroom where Whitley was waiting, and exiting the same
courtroom without his duty belt thirteen minutes later. Despite this knowledge,
Hanna allegedly made no effort to “put a stop to the abuse.” Rather, says
Whitley’s complaint, Hanna “continued to use [her] as bait to catch Ariaz in the
act of sexual offense,” and thereby “knowingly allowed and provided substantial
assistance to a fifty-five year old man to abuse a fifteen year old to better [his]
chance at a conviction and make [his] investigation easier.”
Ariaz continued to abuse Whitley for days, with bits and pieces of his
inappropriate conduct captured on Brownwood Annex video cameras. In the
early morning of July 17, 2007, Hanna hid in the courtroom closet with another
investigator, where he observed Ariaz positioned over Whitley in a “clearly
inappropriate and sexual manner.” Hanna did not intervene to stop Ariaz’s
conduct, but “remained at the Annex so that he would be more ready the next
time to catch Ariaz in the midst of a more prolonged act.” Ariaz left the Annex
with Whitley at around 2:30 in the morning. Hours later, at 6:13 a.m., Ariaz
returned with Whitley; Hanna observed Ariaz kiss her for several minutes while
28
No. 12-10312
she was lying down, and ultimately place his head in Whitley’s “crotch area.”
Only then did Hanna emerge from the closet and place Ariaz under arrest.
Taking these allegations as true, I would conclude that Hanna plausibly
acted with deliberate indifference to Whitley’s constitutional right to bodily
integrity.
II.
As a threshold matter, there is no reasonable debate that Ariaz violated
Whitley’s constitutional rights when he sexually assaulted her. We have long
held that the Fourteenth Amendment affords a person “[t]he right to be free of
state-occasioned damage to . . . bodily integrity.” Doe v. Taylor Indep. Sch. Dist.,
15 F.3d 443, 450–51 (5th Cir. 1994) (en banc) (quoting Shillingford v. Holmes,
634 F.2d 263, 265 (5th Cir. 1981)).1 Sexual abuse by a state official is an
undeniable violation of this liberty interest. See Taylor, 15 F.3d at 451 (“[S]urely
the Constitution protects a schoolchild from physical sexual abuse—here,
sexually fondling a 15-year old school girl and statutory rape—by a public
schoolteacher. . . . Thus, Jane Doe clearly was deprived of a liberty interest
recognized under the substantive due process component of the Fourteenth
Amendment.” (footnote omitted)). We have called it “incontrovertible” that a
state actor violates bodily integrity when s/he sexually abuses a child; “such
1
As the Fourth Circuit explained, “[t]he existence of this right to ultimate bodily
security . . . is unmistakably established in our constitutional decisions as an attribute of the
ordered liberty that is the concern of substantive due process. Numerous cases in a variety of
contexts recognize it as a last line of defense against those literally outrageous abuses of
official power . . . .” Hall v. Tawney, 621 F.2d 607, 613 (4th Cir. 1980). For example, in a case
involving rape by a police officer after a traffic stop, the Eighth Circuit emphasized that the
officer’s sexual assault “was a violation of the most intimate kind of bodily integrity,” and
concluded that the district court did not err in concluding that the officer’s “egregious sexual
violation” deprived the victim of a due process right. Rogers v. City of Little Rock, 152 F.3d
790, 796 (8th Cir. 1998). In a case with nearly identical facts, the Fourth Circuit described the
due process right at issue as a “right . . . not to be subjected by anyone acting under color of
state law to the wanton infliction of physical harm.” Jones v. Wellham, 104 F.3d 620, 628 (4th
Cir. 1997).
29
No. 12-10312
misconduct deprives the child of rights vouchsafed by the Fourteenth
Amendment.” Id. (footnotes omitted).
Critically, the existence of an underlying constitutional violation
differentiates this case from Gonzalez and DeShaney, which examined the scope
of a state official’s duty to interfere with private violence. See Town of Castle
Rock v. Gonzales, 545 U.S. 748, 750–51 (2005) (analyzing whether an individual
had a constitutionally protected property interest in the enforcement of a state-
law restraining order against a private party); DeShaney v. Winnebago Cnty.
Dep’t of Soc. Servs., 489 U.S. 189, 195–96 (1989) (analyzing whether a child had
a substantive due process right to protection from violent physical abuse by his
father). As the Supreme Court explained in DeShaney, the Fourteenth
Amendment was enacted to “protect the people from the State, not to ensure that
the State protected them from each other.” 489 U.S. at 196. Thus, although the
substantive component of the Due Process Clause does not “requir[e] the State
to protect the life, liberty, and property of its citizens against invasion by private
actors,” it does protect against “state-occasioned damage to a person’s bodily
integrity.” Id. at 195; Taylor, 15 F.3d at 450–51 (citing Shillingford, 634 F.2d
at 265) (emphasis added).2
2
The Supreme Court has cautioned that the Due Process Clause “does not entail a
body of constitutional law imposing liability whenever someone cloaked with state authority
causes harm.” Cnty. of Sacramento v. Lewis, 523 U.S. 833, 848 (1998). Instead, for the
conduct of a state actor to give rise to liability under the Due Process Clause, “the threshold
question is whether the behavior of the governmental officer is so egregious, so outrageous,
that it may fairly be said to shock the contemporary conscience.” Id. at 847 n.8 (citing
Washington v. Glucksberg, 521 U.S. 702 (1997)). In many contexts, what shocks the conscience
is “deliberate indifference.” Id. at 851; see Hernandez ex rel. Hernandez v. Tex. Dep’t of
Protective & Regulatory Servs., 380 F.3d 872, 880 (5th Cir. 2004) (“Consistent with those
principles [in Lewis], we have generally required plaintiffs to demonstrate that ‘the defendant
state official at a minimum acted with deliberate indifference toward the plaintiff.’” (citation
and internal quotation marks omitted) (collecting cases)). “As the very term ‘deliberate
indifference’ implies, the standard is sensibly employed only when actual deliberation is
practical.” Lewis, 523 U.S. at 851 (citing Whitley v. Albers, 475 U.S. 312, 320 (1986)); see
Brown v. Nationsbank Corp., 188 F.3d 579, 592 (5th Cir. 1999) (applying a deliberate-
indifference standard where “the FBI made decisions which harmed the Plaintiffs after ample
30
No. 12-10312
Where, as here, a case involves an underlying constitutional violation like
state-occasioned violence, the court must ask whether the state actor treated the
violation with deliberate indifference. See Doe v. Rains Cnty. Indep. Sch. Dist.,
66 F.3d 1402, 1413 (5th Cir. 1995) (noting that, in Taylor, “the supervisor’s
failure to act, coupled with his deliberate indifference, was tantamount to a
conscious decision to allow the alleged constitutional injury to occur or persist”);
see also Taylor, 15 F.3d at 463 (Higginbotham, J., concurring) (“An omission that
evinces deliberate indifference toward the violation of an individual’s
constitutional rights may amount to an act that causes the violation.”).3 My
primary concern here is with the majority opinion’s approach to the deliberate
indifference inquiry.
III.
The deliberate indifference standard is a high bar, but it is not
insurmountable. At this stage, Whitley must plausibly allege that Hanna made
a “‘conscious’ choice to endanger [her] constitutional rights.” Mesa v. Prejean,
543 F.3d 264, 274 (5th Cir. 2008) (quoting Snyder v. Trepagnier, 142 F.3d 791,
799 (5th Cir. 1998)). Taking Whitley’s allegations as true, that is precisely what
happened here: Hanna decided to allow Ariaz, a state official, to continue
opportunity for cool reflection”).
3
For example, in the context of alleged abuse to foster children, we have held that “an
obvious showing that state social workers exhibited a conscious disregard for known severe
physical abuses in a state-licensed foster home by itself sufficiently demonstrates deliberate
indifference to a child’s right to personal security.” Hernandez, 380 F.3d at 881 (concluding
that two social workers did not act with deliberate indifference where, after an investigation,
both concluded that there was no substantial risk to the children at issue). We have allowed
a deliberate-indifference claim against hospital officials who turned a blind eye to a
subordinate’s alleged intentional poisoning of patients. Atteberry v. Nocona Gen. Hosp., 430
F.3d 245, 256 (5th Cir. 2005) (holding that plaintiffs sufficiently pled deliberate indifference
against two supervisors who allegedly “knew both that a dangerous drug was missing and that
patients were dying at an unusually high rate,” and noting that although they “could have
investigated the deaths and missing drugs or changed hospital policy, they did nothing for a
considerable period of time”).
31
No. 12-10312
sexually assaulting Whitley in the hopes of obtaining stronger evidence against
Ariaz. Whitley contends that Hanna was well-aware of the risk to her at the
time; the plan was predicated on the fact that Ariaz had abused, and would
continue to abuse, his young Explorer student.4 In other words, Hanna allegedly
knew that Ariaz was “highly likely to inflict the particular injury” that Whitley
suffered, and Hanna chose not to act. Cf. Brown v. Bryan Cnty., Okla., 219 F.3d
450, 461 (5th Cir. 2000) (citation omitted).
Moreover, Hanna’s alleged conduct goes beyond mere haphazard or
negligent investigation. The majority opinion analogizes Hanna’s behavior to
that of the superintendent in Taylor, highlighting that Hanna immediately
resumed his investigation (after months of stagnation) when he learned that
Ariaz was cavorting with another minor in the Explorers program.5 But Hanna’s
conduct here is fundamentally different from that of the Taylor superintendent.
In Taylor, the superintendent took affirmative, albeit ineffective, steps to end
the abuse. 15 F.3d at 457–58. He directed the principal to talk with the coach
suspected of sexual abuse, contacted the victim’s parents, spoke with the victim,
and verbally reprimanded the coach. Id. The purpose of these actions was to
interfere with the alleged abuse, thereby mitigating the risk of continued
constitutional injury. Id. Indeed, we distinguished the Taylor superintendent’s
4
This is especially true in light of A.M.’s prior complaints about Ariaz’s conduct and the
information Hanna obtained in the very early stages of his investigation regarding Whitley.
Moreover, Hanna himself observed Whitley and Ariaz engaging in sexually suggestive
behavior at the Brownwood Annex. Thus, there is no question that Hanna was aware of the
risk to Whitley’s constitutional rights.
5
The majority opinion emphasizes that Hanna could have conducted the investigation
differently by, for example, moving at a faster pace, or placing video cameras in the courtroom
(rather than the public hallway) of the Brownwood Annex. But it concludes that such mistakes
are not enough to plausibly support § 1983 liability. If Whitley’s claim turned on arguably
minor investigatory failures in a typical criminal investigation, I would agree wholeheartedly.
But it does not. Rather, Whitley’s allegations center on Hanna’s deliberate choice to prolong
the risk of constitutional injury for the perceived greater good of Ariaz’s conviction.
32
No. 12-10312
actions from those of the deliberately-indifferent school principal, who “failed to
take action that was obviously necessary to prevent or stop” the abuse.6 Id. at
457. We focused on the principal’s failure to take actions that may have
“derailed the relationship.” Put another way, the constitutional violations would
not have been as “severe or prolonged” absent his deliberate choice not to act.
Id. If the Taylor principal’s nonfeasance is sufficient to show deliberate
indifference, then Hanna’s allegedly purposeful subrogation of Whitley’s
constitutional rights must be enough to survive 12(b)(6) dismissal.
The implicit message in the majority opinion’s deliberate-indifference
analysis is that an officer can escape § 1983 liability for a conscious
endangerment of a victim’s constitutional rights, provided that he acted with
good intentions. For example, the majority opinion emphasizes that Hanna “had
to decide what evidence would suffice to secure a conviction,” and notes Hanna’s
commitment “to putting an end to Ariaz’s abuses once and for all.” But this
ignores the fact that, in his zeal to put Ariaz behind bars for good, Hanna
allowed—in fact, expected7—Whitley to suffer additional instances of sexual
abuse at the hands of a fifty-five year old police officer. No matter how well-
intended, investigatory and prosecutorial strategies must yield to the inviolable
6
Moreover, the Taylor superintendent was new to the school, and had no prior
knowledge of the teacher’s behavior. Still, he acted immediately when he learned of the abuse.
Here, on the other hand, Hanna declined to complete his investigation of A.M.’s complaint and
then, after learning that Ariaz was likely abusing Whitley, decided to allow the abuse to
continue.
7
Indeed, Hanna’s plan did more than just allow Ariaz to continue to abuse Whitley;
rather, it required further acts of sexual abuse before Hanna would arrest Ariaz or directly
intervene. For example, Whitley alleges that “[Hanna] observed Plaintiff sitting or lying on
a table with Ariaz positioned over her in a clearly inappropriate and sexual manner” at or near
2:30 a.m. on July 17, 2013. The majority opinion’s fine parsing of this allegation extends
beyond the requirements of Twombly and Iqbal. Certainly, Hanna was aware of a substantial
risk to Whitley’s constitutional rights when he saw Ariaz positioned over Hanna in a “clearly
inappropriate and sexual manner.” Whitley alleges that, despite this known risk, Hanna
allowed the contact to continue.
33
No. 12-10312
constitutional rights of those involved (typically the defendant, but here the
victim).8 “While the difficulties of law enforcement are great, police
investigations cannot be allowed to subordinate the rights of men and women
under our Constitution. This principle runs deep in our jurisprudence, and we
will stand by it until time has tolled its last bell.” Melear v. Spears, 862 F.2d
1177, 1186–87 (5th Cir. 1989).
Moreover, the majority opinion’s deliberate-indifference analysis suggests
that Hanna faced a binary choice: arrest Ariaz, or do nothing to intervene in the
absence of conclusive evidence of abuse. See, e.g., Op. at 16 (“Hanna had to
decide what evidence would suffice to secure a conviction.”).9 It focuses on the
fact that Hanna had only “[v]ideo proof that [Whitley] was likely being abused,”
which may not have been sufficient to obtain a conviction under the Texas Penal
8
As Whitley’s counsel rightly noted at oral argument, there are many tactics that an
officer could employ to secure stronger evidence in the course of an investigation: a coerced
confession, an illegal search, an improper wiretap, and so on. See, e.g., Crawford v.
Washington, 541 U.S. 36, 69 (2004) (reversing the judgment of the Washington Supreme Court
based on the unconstitutional denial of a defendant’s Sixth Amendment right to confront a
witness against him); Kyles v. Whitley, 514 U.S. 419, 454 (1995) (reversing a defendant’s
conviction and remanding for a new trial based on the state’s unconstitutional failure to turn
over exculpatory evidence); Blackburn v. Alabama, 361 U.S. 199, 211 (1960) (reversing a
robbery conviction of a mentally incompetent defendant after his confession was found to be
involuntary and in violation of the Fourteenth Amendment); Giordenello v. United States, 357
U.S. 480, 488 (1958) (reversing a conviction for the possession of narcotics when the arrest
warrant lacked probable cause in violation of the Federal Rules of Criminal Procedure); see also
Wilson v. Lawrence Cnty., 260 F.3d 946 (8th Cir. 2001) (holding that a defendant could state
a § 1983 claim where “a reasonable factfinder could determine that Defendants recklessly or
intentionally chose to force Wilson to confess instead of attempting to solve the murder through
reliable but time consuming investigatory techniques designed to confirm their suspicions,” and
noting that there is “no counterveiling equally important governmental interest that would
excuse the appellants from fulfilling their responsibility”). We bar law enforcement from this
conduct because, no matter how valuable the conviction, the constitutional rights at issue are
paramount. See Blackburn, 361 U.S. at 206 (“As important as it is that persons who have
committed crimes be convicted, there are considerations which transcend the question of guilt
or innocence.”).
9
See also Op. at 20 (“Thus, although we easily can imagine some alternatives to the
choice that Appellees made—including confronting Whitley or contacting her parents—the fact
remains that Appellees successfully brought about Ariaz’s arrest approximately two weeks
after Hanna first learned of a potential relationship between Ariaz and Whitley.”).
34
No. 12-10312
Code. But whether Hanna could or should have arrested Ariaz is an entirely
different question from whether Hanna’s failure to intervene in state-occasioned
violence constitutes deliberate indifference. The deliberate-indifference
standard requires only conscious disregard to a “risk that a violation of a
particular constitutional right . . . will follow the decision.” Bd. of Cnty. Comm’rs
of Bryan Cnty., Okl. v. Brown, 520 U.S. 397, 411 (1997) (emphasis added)
(analyzing the deliberate-indifference standard in the context of municipal
liability, and evaluating whether a police officer’s use of excessive force would
have been a plainly obvious consequence of the sheriff’s hiring decision). In
other words, as soon as Hanna knew that Whitley was in danger of further
sexual abuse, he could not choose to ignore the risk, regardless of whether he
had direct evidence for a conviction.
In short, while Hanna may have preferred perfect proof of Ariaz’s sexual
abuse, video or eyewitness evidence was by no means a mandatory prerequisite
to Whitley’s rescue. I would hold at this preliminary stage that Hanna’s alleged
deliberate choice to prioritize Ariaz’s eventual prosecution over Whitley’s
immediate safety plausibly constitutes deliberate indifference to a known risk
of constitutional violations.
IV.
Of course, the inquiry does not end with the plausibility of Whitley’s
§ 1983 claim, as Hanna asserted a qualified-immunity defense. “Qualified
immunity shields federal and state officials from money damages unless a
plaintiff pleads facts showing (1) that the official violated a statutory or
constitutional right, and (2) that the right was ‘clearly established’ at the time
of the challenged conduct.” Ashcroft v. al-Kidd, 131 S. Ct. 2074, 2080 (2011).
Relevant here is the second prong of the inquiry: whether the
constitutional right at issue was “clearly established” at the time of the
challenged conduct. Id. In considering this prong, the court asks whether the
35
No. 12-10312
law so clearly and unambiguously prohibited his conduct that “every ‘reasonable
official would understand that what he is doing violates [the law].’” Id. at 2083
(quoting Anderson v. Creighton, 483 U.S. 635, 640 (1987)). The court will not
deny immunity unless “existing precedent . . . placed the statutory or
constitutional question beyond debate.” Id. at 2083. This doctrine protects “all
but the plainly incompetent or those who knowingly violate the law.” Malley v.
Briggs, 475 U.S. 335, 341 (1986).
The “clearly established” requirement does not depend on the existence of
a case directly on point, however. See al-Kidd, 131 S. Ct. at 2083; see also
Safford Unified Sch. Dist. No. 1 v. Redding, 557 U.S. 364, 377 (2009) (“To be
established clearly, however, there is no need that the ‘very action in question
[have] previously been held unlawful.’” (quoting Wilson v. Layne, 526 U.S. 603,
615 (1999))). “Rather, ‘[t]he central concept is that of fair warning: The law can
be clearly established despite notable factual distinctions between the
precedents relied on and the cases then before the Court, so long as the prior
decisions gave reasonable warning that the conduct then at issue violated
constitutional rights.’” Morgan v. Swanson, 659 F.3d 359, 412–13 (5th Cir. 2011)
(en banc) (Elrod, J., dissenting) (quoting Kinney v. Weaver, 367 F.3d 337, 350
(5th Cir. 2004) (en banc)) (internal quotation marks omitted). The fair notice
requirement is satisfied if controlling authority—or a “robust ‘consensus of
persuasive authority’”—defines the contours of the right in question with a high
degree of particularity. See al-Kidd, 131 S. Ct. at 2083 (quoting Wilson, 526 U.S.
at 617).
Here, I would hold that Hanna lacked fair notice that his conduct would
amount to a constitutional violation.10 Although there is no debate that a child
10
The court looks not to whether the underlying constitutional violation is clearly
established, but rather to whether an officer would have known that his conduct in
addressing—or failing to address—the underlying violation, in and of itself, creates a
36
No. 12-10312
has an inviolable right to bodily integrity, see supra Part II, our case law
regarding an individual’s obligation to intervene in incidents of child sexual
abuse arises almost exclusively in the context of school officials. See Taylor, 15
F.3d at 450–51; Rains, 66 F.3d at 1413. The other analogous body of law arises
in bystander-liability cases, in which we require both actual presence at and
acquiescence in the underlying constitutional violation. See Hale v. Townley, 45
F.3d 914 (5th Cir. 1995). There simply is not enough controlling or persuasive
authority to conclude that every reasonable official in Hanna’s position would
understand that what he was doing violated the law. For that reason, Hanna
is entitled to qualified immunity.
V.
This case is about a state actor’s knowing, deliberate choice not to
intervene despite a substantial risk of continued statutory rape by a public
official, in hopes of obtaining direct evidence for a conviction. While the
underlying law-enforcement goal may be laudable, it must bend where a
constitutional right is in play. Therefore, I would hold that Whitley states a
plausible deliberate-indifference claim under § 1983. Nevertheless, I concur in
the judgment because Hanna is entitled to qualified immunity.
constitutional injury. See, e.g., al-Kidd, 131 S. Ct. at 2084 (explaining that “[t]he general
proposition . . . that an unreasonable search or seizure violates the Fourth Amendment is of
little help in determining whether the violative nature of particular conduct is clearly
established” (citing Saucier v. Katz, 533 U.S. 194, 201–02 (2001); Wilson, 526 U.S. at 615)).
37
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01-03-2023
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08-29-2013
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https://www.courtlistener.com/api/rest/v3/opinions/1873078/
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241 S.W.3d 655 (2007)
Rox COVERT, Duke Covert and Danay Covert, Appellants
v.
WILLIAMSON CENTRAL APPRAISAL DISTRICT, Appellee.
No. 03-06-00218-CV.
Court of Appeals of Texas, Austin.
November 30, 2007.
*656 David M. Hugin, James Popp, Popp, Gray & Hutcheson, LLP, Austin, for Appellants.
Sandra M. Griffin, Robert A. Mott, Joseph T. Longoria, Perdue Brandon Fielder Collins & Mott, LLP, Austin, for Appellee.
Before Chief Justice LAW, Justices PURYEAR and HENSON.
OPINION
DIANE HENSON, Justice.
In this appeal, we decide whether a taxpayer is entitled under section 42.26 of the tax code to challenge only the land component of an ad valorem property tax appraisal of improved land, without claiming that the total appraised value of the property is unequal. See Tex. Tax Code Ann. § 42.26(a)(3) (West Supp.2007).[1] Appellants Rox Covert, Duke Covert and Danay Covert sued Williamson Central Appraisal District ("WCAD")[2] in district court, challenging WCAD's appraisal of five separate tracts of land, three of which are improved with car dealerships, on the grounds that they were not appraised equally and uniformly. See Tex. Const. art. VIII, § 20; Tex. Tax Code Ann. § 42.26(d) (West 2001). WCAD filed a special exception, contending that the Coverts' pleadings failed to state a cause of action with respect to the three improved properties because the Coverts had alleged that only the land components, and not the entire properties, had been appraised unequally. The trial court granted WCAD's special exception and ordered the Coverts to replead. The Coverts refused, and their case was dismissed. The sole issue on appeal is whether the trial court erred in granting WCAD's special exception and in dismissing the claims after ruling that the Coverts had omitted an element of their cause of action, namely that their property was appraised unequally under section 42.26 of the tax code. Holding that the trial court did not err because the statute requires a taxpayer to challenge the appraised valuation of the entire improved property and not merely its component values, we affirm.
BACKGROUND
The properties involved in this litigation are five tracts ranging from approximately *657 5 to 87 acres, three of which are improved with Covert car dealerships, located on Highway 79 in Williamson County.[3] Each property was listed on WCAD's appraisal roll in a separate account. For each of the improved properties, WCAD separately listed values for the land and for the improvements in its records, as is required by section 25.02 of the tax code. See Tex. Tax. Code Ann. § 25.02(a) (West 2001). Deposition testimony from WCAD appraisers explained that all three improved properties had extensive "site improvements," including parking lots and landscaping, that were constructed in order to prepare the properties for use as car dealerships. WCAD offered further testimony that it includes site-improvement values in its computation of the land component of an appraisal.
This case began when the Coverts filed suit in district court challenging WCAD's valuations of the five tracts for the 2001 tax year. The next year, while the 2001 case was pending, the Coverts filed an amended petition adding a challenge to the valuations for the 2002 tax year. In a different case later consolidated with the original, the Coverts appealed for tax years 2003 and 2004. Therefore, the case before us involves four tax years.
Following consolidation, the Coverts' second amended petition modified their challenge to appeal the valuation of "the land portion only" of each of the properties. They argued that, when compared to other vacant, unimproved parcels of land along Highway 79, the land underlying their car dealerships had been appraised unequally. WCAD responded by filing a special exception, alleging that the tax code does not provide a remedy for a taxpayer who claims unequal appraisal only as to the land portion of an improved property and that, because the Coverts had abandoned their claim that the entire properties were unequally appraised, their pleadings failed to state a cause of action with respect to the three improved properties. The trial court granted WCAD's special exception and ordered the Coverts to replead their cause of action that the subject property"the entire property"is appraised unequally under section 42.26 of the tax code. Upon the Coverts' refusal to replead, the trial court dismissed the case.[4]
DISCUSSION
Standard of review
The Coverts argue on appeal that the trial court erred in dismissing their case upon granting WCAD's special exception. When a trial court dismisses a case upon special exceptions for failure to state a cause of action, we review that issue of law de novo. Butler Weldments *658 Corp. v. Liberty Mut. Ins. Co., 3 S.W.3d 654, 658 (Tex.App.-Austin 1999, no pet.). In so doing, we must accept as true all material factual allegations and all factual statements reasonably inferred from the allegations set forth in the respondent's pleadings. Id. If a pleading does not state a cause of action, the trial court does not err in dismissing the entire case. Id.
In this case, both the trial court's ruling on the special exception and its dismissal of the Coverts' claim were premised on its interpretation that section 42.26 requires a taxpayer to challenge the entire appraisal of improved property. Addressing whether this was the intent of the legislature is a matter of statutory construction, which we review de novo. See Texas Dep't of Transp. v. City of Sunset Valley, 146 S.W.3d 637, 642 (Tex.2004).
Plain meaning of section 42.26
The issue of whether section 42.26 authorizes a taxpayer to challenge a single component of the assessor's appraisal of improved land is one of first impression.[5] In our interpretation of this section, we are bound by well-settled rules of statutory construction. First and foremost, we are required to follow the plain meaning of the statute. Meno v. Kitchens, 873 S.W.2d 789, 792 (Tex.App.-Austin 1994, writ denied). If the language of the statute is unambiguous, then we must seek the legislative intent as found in the plain and common meaning of the words and terms used. Sorokolit v. Rhodes, 889 S.W.2d 239, 241 (Tex.1994). In applying the plain and common meaning of the language, we may not enlarge the meaning of any word in the statute beyond its ordinary meaning; such implication is inappropriate when intent may be gathered from a reasonable interpretation of the statute as it is written. Id. at 241.
Section 42.26 provides:
The district court shall grant relief on the ground that a property is appraised unequally if the appraised value of the property exceeds the median appraised value of a reasonable number of comparable properties appropriately adjusted.
Tex. Tax Code Ann. § 42.26(d) (West 2001).
The Coverts argue that nothing in the language of 42.26 requires them to challenge the appraised value of every item that comprises "property" in order to state a claim under that section. Noting that the indefinite article "a" precedes the first mention of the word "property" in section 42.26, but that the definite article "the" comes before the second mention, the Coverts conclude that the clear intent of the legislature was to narrow the median test "to whichever matter or thing was selected for challenge by the property owner." In other words, if a property owner elects to challenge as "a" property only the land portion of improved property, then the median test must be applied exclusively to the land as "the" property in issue.
We do not agree, however, that the choice of article antecedent to the word "property" in section 42.26 is clear evidence of the legislature's intent in this regard. Rather, we conclude from the plain language of the statute that whatever property is appraised must be valued equally in relation to other comparable properties. In the case of an improved property, such as one of the Covert car dealerships, a single appraised value is given to the entire property, which represents *659 the total value of the land, the buildings, and the various site improvements, including all parking lots, curbing, and landscaping. So long as that valuation is an equal and uniform assessment, we cannot support overturning it because the land component is valued too high or the improvement component too low. While evidence that only the land or only the improvements were assessed unequally is certainly relevant to the taxpayer's challenge, he cannot prevail unless he can show that the appraised value of the improved property is not equal or uniform.
In deposition testimony read at the hearing on the special exception, the Coverts' independent appraiser admitted that even if the land component of a property is appraised unequally, the entire property is "not necessarily" appraised unequally. We agree with the trial court that completely fair appraisals should not be overturned simply "because one component or the other is subject to attack without some showing that the overall appraisal is incorrect." We emphasize, however, that a taxpayer need not bring evidence concerning every component in a challenge under section 42.26; rather, he may take issue only with the value given to the land or only with the value given to the improvement, so long as he can show that, as a result, his entire improved property was appraised unequally in violation of the statute.
In support of their position, the Coverts point to a provision in the tax code wherein the appraisal district is required to separately list values for land and improvements in its own records as evidence that the legislature contemplated allowing separate challenges to these component values. See id. § 25.02(5), (6) (West 2001). They also argue that the predecessor statute to section 25.02, which did not require the separate listing of the land and improvement components on the appraisal roll, should be viewed as evidence that the legislature intended for each appraised component value to give rise to a separate challenge. Again, however, we note that although the appraisal roll may contain two or more component values in its record for a single property, there is only one assessed value to which the taxpayer may bring a challenge. The separate values for land and improvements are not certified to the taxing units that impose the tax, nor are they included in the tax bill to the property owner. See id. §§ 26.01(c), 31.01 (West 2001). Although the land and improvement values may present contestable issues, we hold that the total improved property valuewhich includes both the land and improvement componentsis the only appraised value that the taxpayer may appeal.[6]
In support of our reading of the plain language of section 42.26, we note that under the tax code, "appraised value means the value determined as provided by Chapter 23 of this code." Id. § 1.04(9) (West 2001). Chapter 23 dictates that all taxable property is appraised at its market value. Id. § 23.01(a), (b). Moreover, each property shall be appraised based upon the individual characteristics that affect the property's market value. Id. § 23.01(b). Land that is improved with a car dealership, as well as other site improvements, has different individual characteristics affecting its market value than *660 undeveloped, "raw" land. Because section 42.26 uses the "appraised value" of the subject property as the basis for comparison and, by statute, appraised value is market value, we do not agree with the Coverts that the legislature intended to allow taxpayers to challenge the component values of their property in isolation from a consideration of the total assessed value of the property.
In holding that "appraised value" encompasses both the land and the improvement value for the purpose of challenges brought under section 42.26, we find persuasive the reasoning of the Dallas court in its interpretation of "appraised value" under section 23.23 of the tax code. See Bader v. Dallas Central Appraisal Dist., 139 S.W.3d 778 (Tex.App.-Dallas 2004, pet. denied). Bader concerned the application of that section's ten percent cap on appraised valuation, which provides that the appraised value of a residence homestead may not increase more than ten percent annually. See Tex. Tax Code Ann. § 23.23 (West Supp.2007). Bader had argued that the cap ought to be applied separately to the land and the improvement components of his property, claiming that section 23.23 must be read in conjunction with the definitions of "property" in section 1.04 and in light of the separate listing requirement of section 25.19(f). Bader, 139 S.W.3d at 781.
Rejecting this interpretation, the Dallas court held that the legislature did not intend the cap to be applied separately to the land and the improvements, despite the fact that the legislature required the separate listing of land and improvement values in the notice of appraised value under section 25.19(f). Id. The court found no language linking section 25.19(f) to the cap provisions in section 23.23 and concluded that the separate listing requirement in section 25.19(f) exists only so that the property owner can identify the value set for the component parts of his real property to determine whether he should contest an appraised value set by the appraisal district. Id. at 781-82. "That purpose, to give `notice' of the appraised value, does not translate into a requirement that an appraisal district apply the ten percent cap separately to the land and then to the improvements." Id.
Likewise, there is no evidence in this case that the legislature intended the separate listing requirement contained in section 25.02 to have any effect on challenges to appraised value brought under section 42.26. There is no language linking section 25.02 to section 42.26, and section 25.02 itself appears to be only an administrative provision addressing the "form and content" of records maintained by the appraisal district. See Tex. Tax Code Ann. § 25.02 (West 2001). The Coverts cite to no authority suggesting that section 25.02 provides a basis for bringing separate challenges to land and improvement values as separate "appraised values" under section 42.26 or that section 25.02 is anything but a clerical or administrative requirement.
The Coverts further argue that this construction of section 42.26 will lead to absurd results with regard to the appraisal of mineral interests and timber. They allege that someone who owns such an interest would never be able to challenge the equality and uniformity of the tax assessment of the minerals or timber without also having to challenge the land and any improvements on the land. We disagree. The tax code provides that where timber or mineral interests are held as separate estates by someone other than the landowner, they are listed separately on the tax rolls in their respective owner's name. See id. §§ 25.10, .12. It is clear that in these circumstances, the legislature contemplated that separate challenges could *661 originate from the owner of a mineral or timber interest, unrelated to an action concerning the valuation of the overlying land. Had the legislature intended the same result in the case of improved property as it did in cases involving separately-owned mineral or timber interests, it would have explicitly provided that remedy in the code.
We therefore hold that a taxpayer challenging the equal and uniform assessment of an improved property under section 42.26 must allege that the overall appraised value of the property is unequal. While he is not prevented from bringing evidence that only the land or only the improvement was unequally assessed, the taxpayer must allege that the value of the improved property was appraised unequally in order to state a cause of action under section 42.26.
CONCLUSION
Because the trial court did not err in granting the dismissal, we affirm.
NOTES
[1] Both the original lawsuit and the later consolidated lawsuits were filed before the amendment to section 42.26, whereby the substantive provisions of subsection (d) were incorporated into subsection (a)(3). For the sake of clarity, we will hereafter refer to the former section 42.26(d) in force at the time the action was commenced and not the current section 42.26(a)(3). See Act of June 20, 2003, 78th Leg., R.S., ch. 1041, 2003 Tex. Gen. Laws 2998-99 (amended 2003) (current version at Tex. Tax Code Ann. § 42.26(a)(3) (West Supp.2007)).
[2] We note that the name of the appraisal district is Williamson Central Appraisal District, and not Williamson County Appraisal District as indicated in the parties' briefs.
[3] Besides the three tracts that are improved with car dealerships, there is also a "wraparound" tract that connects each of the three dealership properties to a back road and provides drainage for the other tracts. The largest tract is unimproved and is currently designated for agricultural use.
[4] At the hearing, the parties discussed but do not appear to have resolved the issue of whether granting WCAD's special exception would have any effect on the Coverts' challenge as to the two unimproved properties. When asked by the trial court if they would pursue their claim on those two tracts, the Coverts admitted, "the money in this is in [the improved parcels]" and that without a favorable ruling allowing them to plead and prove the theory that the land component could be challenged separately, they "would be dead essentially" on their entire case. The order granting dismissal referred to all five of the properties in the consolidated case; however, because the Coverts failed to raise an appellate point concerning either the unimproved agricultural tract or the wraparound tract, they have waived error with respect to the dismissal of their appeal of those two properties. See Tex.R.App. P. 38.1(h).
[5] The same claim appears to have been raised in only one other Texas case, Reliance Insurance Co. v. Denton Central Appraisal District, 999 S.W.2d 626 (Tex.App.-Fort Worth 1999, no pet.). The court did not reach the issue, however, having decided that case on other grounds. Id. at 627.
[6] As mentioned above, our holding in this case does not require a taxpayer to allege that every component value is incorrect in order to state a claim under section 42.26. If the Coverts had pled that their land was valued unequally and that this resulted in an unequal assessment for the entire appraised value given to their respective car dealerships, they would have satisfied the statutory requirements. They were not required to plead and prove that both the land and the improvements were valued unequally.
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Trapani v Yonkers Racing Corp. (2015 NY Slip Op 00357)
Trapani v Yonkers Racing Corp.
2015 NY Slip Op 00357
Decided on January 14, 2015
Appellate Division, Second Department
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and subject to revision before publication in the Official Reports.
Decided on January 14, 2015
SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Second Judicial Department
REINALDO E. RIVERA, J.P.
PETER B. SKELOS
SHERI S. ROMAN
ROBERT J. MILLER, JJ.
2013-03482
(Index No. 24810/10)
[*1]Mildred Trapani, respondent,
vYonkers Racing Corporation, etc., et al., appellants.
Kaufman Dolowich & Voluck, LLP, Woodbury, N.Y. (Kenneth B. Danielson of counsel), for appellants.
Mallilo & Grossman, Flushing, N.Y. (Franceso Pomara, Jr.), for respondent.
DECISION & ORDER
In an action to recover damages for personal injuries, the defendants appeal from an order of the Supreme Court, Queens County (Strauss, J.), entered February 6, 2013, which denied their motion for summary judgment dismissing the complaint.
ORDERED that the order is reversed, on the law, with costs, and the defendants' motion for summary judgment dismissing the complaint is granted.
The plaintiff allegedly was injured when she slipped and fell while entering a bathroom at premises owned by the defendant Yonkers Racing Corporation and operated by the defendant Yonkers Racing Association. At her deposition, the plaintiff testified that she had visited the subject premises "quite often" prior to the accident, and estimated that she had been in the same bathroom more than 20 times. The plaintiff testified that, on the date of the accident, she was looking forward as she entered the bathroom, and that, prior to her fall, she did not "feel any slipperiness on the floor." When asked whether there was any slippery substance underneath her when she fell, the plaintiff responded that "it could have been" because she "felt damp when [she] fell." The plaintiff also testified that there was no puddle underneath her and that she could not say the floor was wet. Although the plaintiff testified that it was "very dark" inside the bathroom, when asked if the lighting was different at the time of her accident than it had been during her prior visits, the plaintiff testified, "I never looked at the lighting. I don't notice those things. I don't look at lights." Following the accident, an incident report was prepared by a peace officer employed by the defendants indicating that, on the day of the accident, the plaintiff stated that she was looking in the mirror on the right side of the restroom entrance and "wasn't paying attention causing her to walk into the wall falling to the floor."
"A plaintiff's inability to identify the cause of her fall is fatal to a claim of negligence in a slip-and-fall case because a finding that the defendant's negligence, if any, proximately caused the plaintiff's injuries would be based on speculation" (DiLorenzo v S.I.J. Realty Co., LLC, 115 AD3d 701, 702; see Rodriguez v 1790 Broadway Assoc., LLC, 122 AD3d 604; Patrick v Costco Wholesale Corp., 77 AD3d 810). Here, the the defendants established their prima facie entitlement to judgment as a matter of law by submitting evidence that the plaintiff could not identify the cause of her fall without resorting to speculation (see Rodriguez v 1790 Broadway Assoc., LLC,122 AD3d [*2]604; Dennis v Lakhani, 102 AD3d 651, 652; Curran v Esposito, 308 AD2d 428, 429; Capone v 450 Lexington Venture, LP, 300 AD2d 428, 428-429). In opposition, the plaintiff failed to raise a triable issue of fact. The plaintiff's affidavit submitted in opposition to the motion, in which she identified the cause of her fall as "water or cleaning liquid that was on the floor," merely raised what clearly appears to be a feigned issue of fact designed to avoid the consequences of her earlier deposition testimony (see Capasso v Capasso, 84 AD3d 997, 998; Hunt v Meyers, 63 AD3d 685, 686).
Accordingly, the Supreme Court should have granted the defendants' motion for summary judgment dismissing the complaint.
RIVERA, J.P., SKELOS, ROMAN and MILLER, JJ., concur.
ENTER:
Aprilanne Agostino
Clerk of the Court
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981 A.2d 323 (2009)
COM.
v.
STURZIS.
No. 2793 EDA 2007.
Superior Court of Pennsylvania.
June 3, 2009.
Affirmed.
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NO. 07-07-0124-CV
IN THE COURT OF APPEALS
FOR THE SEVENTH DISTRICT OF TEXAS
AT AMARILLO
PANEL B
OCTOBER 3, 2007
______________________________
IN THE INTEREST OF M.E.R. AND Z.C.R., CHILDREN
_________________________________
FROM THE 64TH DISTRICT COURT OF HALE COUNTY;
NO. 8901A24508; HONORABLE ROBERT W. KINKAID, JR., JUDGE
_______________________________
Before QUINN, C.J., and CAMPBELL and HANCOCK, JJ.
MEMORANDUM OPINION
Paul McDaniel, father of M.E.R. and Z.C.R., filed notice of appeal from an order
confirming a child support arrearage. The trial court clerk's record was filed in this Court
on June 7, 2007. A reporter’s record was never filed. By letter of June 21, 2007, this Court
directed McDaniel to certify by July 2, 2007, that he had requested and made satisfactory
payment arrangements for the reporter’s record. The letter contained notice that failure
to comply might result in the Court setting the deadline for his brief. Tex. R. App. P.
37.3(c). McDaniel made no response. By letter of July 19, 2007, this Court notified
McDaniel that his appellate brief was due August 23, 2007. On July 23, 2007, this Court
received a letter from McDaniel, briefly arguing why he should be excused from paying the
child support arrearage confirmed by the trial court. By letter of July 30, 2007, this Court
notified McDaniel that his letter, if intended as an appellate brief, did not comply with the
rules of appellate procedure, and reminded him that his brief was due August 23. Tex. R.
App. P. 38.1. A copy of Rule 38.1 was included in this correspondence. McDaniel filed
no additional documents. By letter of September 10, 2007, this Court notified him that his
appeal was subject to dismissal for want of prosecution unless his brief was filed, along
with a motion for extension of time, by September 20, 2007. Again, McDaniel made no
response.
An appellate court may dismiss an appeal for want of prosecution if an appellant
fails to timely file a brief unless the appellant reasonably explains the failure and the
appellee is not significantly injured by the failure. Tex. R. App. P. 38.1(a)(1). On its own
motion, with ten days notice to the parties, an appellate court may dismiss an appeal for
want of prosecution or failure to comply with a notice from the clerk requiring a response
or other action within a specified time. Tex. R. App. P. 42.3(b),(c). Here the record reveals
appellant McDaniel has not timely filed a brief and has given us no reason for his failure
to do so, despite notice requiring its filing by a specified date. We further find the Court
has given the parties the required ten days notice.
Accordingly, we now dismiss McDaniel’s appeal for want of prosecution and failure
to comply with a directive of the Court. See Tex. R. App. P. 38.8(a)(1); 42.3(b),(c).
James T. Campbell
Justice
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971 So. 2d 121 (2008)
RICHARDSON
v.
STATE.
No. 1D07-2926.
District Court of Appeal of Florida, First District.
January 7, 2008.
Decision without published opinion. Affirmed.
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3 A.3d 1223 (2010)
203 N.J. 432
STATE of New Jersey, Plaintiff-Movant,
v.
Jamiyl DOCK, Defendant-Respondent,
Nos. M-28 September Term 2010, 066322
Supreme Court of New Jersey.
September 10, 2010.
ORDERED that the motion for leave to appeal is granted.
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