Clay v. Bowles

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 00-10585

Summary Calendar

JACK HAMMOND CLAY, JR.;

CHRISTIAN CLAY; DANIELLE LICHTENSTERN,

Plaintiffs-Appellants,

versus

JIM BOWLES, Sheriff of Dallas County;

DALLAS COUNTY, TX; KNIGHT #519, Dallas

Deputy Sheriff; J TEMPLE #538, Dallas

County Sheriff’s employee; CURTIS KALOI #627,

Irving Police Officer; CITY OF IRVING;

IRVING INDEPENDENT SCHOOL DISTRICT; FISHER, Dr,

Irving Independent School District employee;

UNKNOWN OTHERS,

Defendants-Appellees.

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Appeal from the United States District Court

for the Northern District of Texas

USDC No. 3:99-CV-82-X

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January 19, 2001

Before DAVIS, JONES and DeMOSS, Circuit Judges.

PER CURIAM:*

Plaintiffs appeal the summary judgments in favor of all

defendants and the dismissal of their 42 U.S.C. § 1983 claims

stemming from the search of Danielle Lichtenstern’s person and

car by a school official and the subsequent arrest of Danielle

Lichtenstern at the residence she shared with her stepfather,

*

Pursuant to 5TH CIR. R. 47.5, the court has determined that

this opinion should not be published and is not precedent except

under the limited circumstances set forth in 5TH CIR. R. 47.5.4.

No. 00-10585

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Jack Hammond Clay, Jr., and her mother, Christian Clay.

Appellants argue that appellee Fisher’s search of Lichtenstern’s

person and car was unconstitutional because Fisher lacked

probable cause, thus the search was a violation of Lichtenstern’s

Fourth Amendment right to be secure from unreasonable search and

seizure.

The Clays were not present during the search and their

rights were not violated. Thus, the district court did not err

in concluding that Jack Hammond Clay, Jr., and Christian Clay

lacked standing to assert a Fourth Amendment claim for unlawful

search and seizure as they failed to show that they suffered an

actual or threatened injury as a result of the actions of the

defendants. See Johnson v. Hosp. Corp. of America, 95 F.3d 383,

390 (5th Cir. 1996). Because Lichtenstern did not appeal the

denial of her motion to suppress and pleaded nolo contendre to

the charge for possession of marijuana, she waived her Fourth

Amendment challenge to the search and seizure that resulted in

discovery of the marijuana. See Smith v. Estelle, 711 F.2d 677,

682 (5th Cir. 1983).** Moreover, any challenge to the validity

of Lichtenstern’s conviction is barred by Heck v. Humphrey, 512

U.S. 477 (1994). The district court did not err in dismissing

Lichtenstern’s challenge to the constitutionality of the search

and seizure.

Appellants challenge the validity of the arrest on the basis

that the warrant did not comply with Texas law. Although the

**

See also, Carter v. Collins, 918 F.2d 1198, 1200 n.1 (5th

Cir. 1990)(a nolo contendere plea is treated as an admission of

guilt, the same as a guilty plea).

No. 00-10585

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allegedly defective warrant was executed at the Clays’ home, they

cannot show that they suffered an actual or threatened injury

therefrom. They therefore have no standing to challenge the

arrest of their daughter. See Johnson, 95 F.3d at 390.

To prevail on a claim of illegal arrest, Lichtenstern would

have to prove that there was no probable cause to arrest her.

Trejo v. Perez, 693 F.2d 482, 486 (5th Cir. 1982). The marijuana

found in Lichtenstern’s car provided the requisite probable

cause. See Wells v. Bonner 45 F.3d 90, 95 (5th Cir. 1995);

United States v. Jones, 185 F.3d 459, 464 (5th Cir. 1999), cert.

denied, 121 S. Ct. 125 (2000). Plaintiffs do not argue

otherwise. This claim is without merit.

Appellants argue that Dr. Fisher, Officer Kaloi, Deputy

Knight, and Temple, were not following the established policy and

customs of their employers, thus they are not entitled to “good

faith” immunity. They also argue that Sheriff Bowles and the

Dallas County Sheriff’s Department have a policy and custom that

allows the execution of invalid warrants, and that Deputy Knight

and Temple were acting pursuant to that policy in accepting and

executing the warrant for Lichtenstern’s arrest. These arguments

appear to be a challenge to a qualified immunity defense.

However, the district court did not rely on immunity to dismiss

plaintiffs’ claims. This argument is therefore moot.

Appellants assert in their “Statement of Issues” and in

their “[c]onclusion” that the district court erred in failing to

instruct them to respond to all of the defendants’ assertions of

qualified immunity. However, plaintiffs have not briefed this

No. 00-10585

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point of error. It is therefore waived. See Al Ra’id v. Ingle,

69 F.3d 28, 33 (5th Cir. 1995).

The district court did not err in finding that there were no

genuine issues of material fact and that the defendants were

entitled to judgment as a matter of law. See Harris v. Rhodes,

94 F.3d 196, 197-98 (5th Cir. 1996).

AFFIRMED.