Opinion

COURT OF APPEALS

SECOND DISTRICT OF TEXAS

FORT WORTH

NO. 02-11-00119-CV

DARREN BRADLEY SWAIN APPELLANT

V.

CORPORAL JASON HUTSON, APPELLEES

OFFICER DORA DEWALL,

SERGEANT DANIEL HENNING,

COURT CLERK NORMA

WILLIAMS, JUDGE STEWART

MILNER, JUDGE ROSALIA

MADDOCK, AND DOES 1–5

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FROM THE 48TH DISTRICT COURT OF TARRANT COUNTY

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MEMORANDUM OPINION1

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I. Introduction

In three points, pro se Appellant Darren Bradley Swain appeals from the

trial court‘s grant of motions to dismiss for want of jurisdiction filed by Appellees

1

See Tex. R. App. P. 47.4.

Arlington Municipal Court Judges Stewart Milner and Rosalia Maddock and

Arlington Municipal Court Clerk Norma Williams (the judicial employees);

Arlington Police Corporal Jason Hutson, Officer Dora DeWall,2 Sergeant Daniel

Henning, and City of Arlington employees John Does 1–5 (the other employees).

We affirm.

II. Factual and Procedural Background

This is the second time that Swain appeals the trial court‘s dismissal of his

claims in this case for want of jurisdiction. See Swain v. Hutson (Swain I), No.

02-09-00038-CV, 2009 WL 3246750 (Tex. App.—Fort Worth Oct. 8, 2009, pet.

denied) (mem. op.).

A. Factual Background in Swain I

As set out in our first opinion, Swain alleged that on August 30, 2006, he

and two women parked his rental car in the parking lot of a vacant Arlington

restaurant after one of the women spilled a soft drink in the car. Id. at *1. While

all three individuals stood outside the car, Officer DeWall arrived to investigate,

and Corporal Hutson arrived later to assist her. Id. Corporal Hutson knew the

two women with Swain, and Swain alleged that, at some point, Corporal Hutson

threw him against the rental car and searched him. Id.

2

Officer DeWall‘s first name is spelled ―Dora‖ in the caption of this case

and in portions of the clerk‘s record, but it is spelled ―Dara‖ in her affidavit and in

her amended plea to the jurisdiction.

2

When Corporal Hutson found in Swain‘s pockets sealed samples of

Protonix and Levitra, which Swain‘s physician had given him, the officers

arrested him for possession of dangerous drugs and also cited him for offering to

buy or sell goods or services on city property. Id. Swain was released on bail

later that evening, but his drug samples and a number of cell phone ―SIM‖ cards

were not returned to him. Id. Over the next few months, Swain attempted on

several occasions to reclaim his drug samples and SIM cards and to obtain

copies of the charges, police reports, and other documents and information

related to his arrest from city officials, with only limited success. Id. Swain

received an additional citation in the mail on January 3, 2007, charging him with

itinerant vending without a license based on the August 30, 2006 events. Id.

On February 1, 2007, Judge Milner presided over Swain‘s trial on the

charge of offering to buy or sell goods or services on city property, found him

guilty, and assessed a fine and costs totaling $173. Id. The possession of

dangerous drugs charge was dismissed. Id. On March 2, 2007, Swain tried to

pay his appeal bond for the February 1 conviction. Id. He alleged that municipal

court clerk Williams initially refused to accept payment but eventually accepted a

certified check and that a Tarrant County criminal court later dismissed the

appeal because the appeal bond was filed too late. Id.

Swain filed a motion to dismiss the itinerant vending charge on May 2,

2008, alleging that he had been denied his right to a speedy trial. Id. at *2. On

July 17, 2008, a jury in Judge Maddock‘s court found Swain guilty. Id.

3

Swain filed a civil suit against everyone he believed was responsible for his

perceived injustices, alleging state law torts and violations of his federal

constitutional rights. Id. The City of Arlington filed a motion to dismiss under

section 101.106(e) of the civil practice and remedies code, which did not address

Swain‘s federal claims, and the trial court granted the motion.3 Id. at *3. We

affirmed the dismissal of Swain‘s state law claims but reversed and remanded his

federal law claims to the trial court. Id. at *6.

B. Judicial Employees’ Motion to Dismiss

After our mandate issued in Swain I, the judicial employees—Judges

Milner and Maddock and municipal court clerk Williams—filed a motion to

dismiss Swain‘s suit for lack of jurisdiction based on judicial immunity and

governmental immunity. In support of their motion, they attached Exhibit A,

thirty-six pages of business records from the municipal court pertaining to

Swain‘s conviction for offering to sell goods or services on city property; Exhibit

B, seventy-eight pages of business records from the municipal court pertaining to

Swain‘s conviction for itinerant vending without a license; and Exhibit C,

Williams‘s affidavit.

Exhibit A included a case history report that listed all of the recorded

events and filings for Swain‘s case in Judge Milner‘s court. This exhibit also

3

Swain nonsuited the City before the trial court ruled on the City‘s motion,

in an attempt to prevent the application of section 101.106(e). Swain I, 2009 WL

3246750, at *3. The trial court granted the nonsuit when it granted the City‘s

motion. Id.

4

showed that Officer DeWall issued Swain a citation on August 30, 2006, for

offering to sell goods or services on city property4 and that Swain pleaded not

guilty, was found guilty, and received a $111 fine plus costs (for a total of $173)

on February 1, 2007. It further showed that on February 23, 2007, Swain was

informed of the amount due for his appeal bond and for the reporter‘s record, that

he said he would mail checks for these items, and that a check was received

from Swain for the appeal bond amount on March 2, 2007.

Exhibit B included a case history report that listed all of the recorded

events and filings in Swain‘s itinerant vending case. This exhibit also showed

that Officer DeWall issued Swain a citation on January 2, 2007, for itinerant

vending without a license5 for his activities on August 30, 2006; that Swain filed a

motion for continuance on August 3, 2007; that on May 2, 2008, and July 15,

2008, he moved to dismiss the case for violating his right to a speedy trial, which

the municipal court denied as moot; that a jury found him guilty on July 17, 2008;

and that the municipal court assessed a $488 fine plus costs (for a total of $550).

4

The complaint alleged that Swain had knowingly occupied a shoulder,

improved shoulder, sidewalk, median, or public right-of-way in a prohibited area,

to-wit: in the 2200 block of North Collins Street, for the purpose of selling or

offering for sale any product, property, or service to the occupant of any vehicle,

other than a lawfully parked vehicle, ―in violation of the Ordinance in said City

Governing Streets.‖

5

The jury charge defined ―itinerant vending‖ as engaging in a temporary

business in the City in person or by an agent for the purpose of soliciting, selling,

or taking orders for merchandise or services.

5

In Exhibit C, Williams described her interactions with Swain: She gave him

an ―Appeal Information‖ form after he was found guilty of offering to sell goods or

services on city property on February 1, 2007; she recorded his motion for new

trial on February 13, 2007, which the municipal court denied on February 15,

2007; and she recorded that Swain dropped off a ―Notice of Appeal‖ on February

23, 2007. Williams also stated that on March 2, 2007, Swain appeared at the

cashier window in the municipal courthouse and presented a check for $346,

made payable to Tarrant County, with no appeal bond or additional paperwork

attached; she accepted the check and recorded a copy of it; Swain continued to

request additional information; and she and another clerk told him that they could

not give him legal advice and referred him to his ―Appeal Information‖ form. After

they asked Swain to leave and he refused, Williams asked a nearby warrant

officer for assistance, and then Swain left.

C. Swain’s Post-Remand Petition

Swain did not file a response to the judicial employees‘ motion, but he filed

a verified amended petition not long afterward, adding Does 1–5 as defendants

and adding the following factual allegations: (1) Corporal Hutson knew the two

women with Swain because he had been previously involved in litigation with

them; (2) Neither of the two drugs that Corporal Hutson found on Swain produce

any symptoms of intoxication, depriving Corporal Hutson of probable cause to

suspect that Swain was under the influence of any substance or to search him;

(3) Corporal Hutson arrested Swain at around 6:00 p.m. and did not read to him

6

his Miranda rights before several police officers searched his rental car for an

hour and a half while he waited in Corporal Hutson‘s vehicle to be transported to

jail; (4) Corporal Hutson refused his request to be taken before a magistrate

judge; and (5) Corporal Hutson stranded the two women in the vacant parking

lot, demonstrating the retaliatory nature of Corporal Hutson‘s actions for the

women‘s previous litigation against him. In his amended petition, Swain renewed

his complaints that during the first three hours of his arrest and incarceration he

was denied access to a phone and that he was released at 1:20 a.m., after

posting bond, approximately six hours after being taken into custody.

During the hearing on the judicial employees‘ motion, Swain offered nine

exhibits—appraisal information for a piece of City of Arlington commercial

property; a letter from Swain‘s physician explaining the drug samples; a

prescription for the drugs; a questionnaire with a judge‘s handwritten answers; an

arrest warrant affidavit template ; the judgment for Swain‘s conviction for offering

to sell goods or services on city property; the State‘s motion to dismiss one of the

charges; Swain‘s check for $346 made payable to Tarrant County; and the

possession of dangerous drugs charging instrument. The trial court granted the

judicial employees‘ motion on November 15, 2010.

D. Other Employees’ Motion to Dismiss

The other employees, Does 1–5 and the police officers—Corporal Hutson,

Officer DeWall, and Sergeant Henning—filed a motion to dismiss for lack of

jurisdiction based on governmental immunity and qualified immunity. To their

7

motion, they attached Corporal Hutson‘s affidavit as Exhibit A, Officer DeWall‘s

affidavit as Exhibit B, twenty-six pages of administrative business records from

the Arlington police department as Exhibit C, and our opinion in Swain v. State

(Swain II), 319 S.W.3d 878 (Tex. App.—Fort Worth 2010, no pet.) (mem. op.), in

which Swain appealed his conviction for itinerant vending without a license, as

Exhibit D.

In his affidavit, Corporal Hutson stated that he spotted Officer DeWall

conducting an investigation in an area he was patrolling. He recognized the two

women with Swain as subjects he had ―dealt with on numerous occasions‖ when

he worked on the east side of Arlington ―in reference to drugs, narcotics, stolen

vehicles, and other such crimes.‖ Corporal Hutson stated that he spoke with

Officer DeWall about what she had found during her investigation and that she

said that the subjects had multiple cell phones in the rear of the vehicle and were

attempting to sell them on the public sidewalk with a tent set up.

Corporal Hutson noticed multiple bulges in Swain‘s pockets and advised

Swain that he was going to pat him down for weapons. He asked Swain for a

business card, and when Swain pulled items from his left pocket, Corporal

Hutson noticed two blister packs containing what he believed to be prescription

pills. Swain told him that he did not have a prescription for the pills with him.

Corporal Hutson identified the drugs—Protonix and Levitra—as dangerous

drugs. Officer DeWall placed Swain in handcuffs because he did not have a

8

prescription for the drugs. Corporal Hutson stated that he did not use any force

on Swain.

In her affidavit, Officer DeWall stated that at approximately 4:59 p.m. on

August 30, 2006, she was on a routine patrol when she saw Swain and two

women setting up a tent with a sign for ―Sprint,‖ a phone company, and that it

appeared to her that they were trying to sell items to people driving down the

street. The tent was on the other side of the sidewalk from a vacant restaurant

parking lot, ―in the grassy area, which is city property.‖ She pulled into the

parking lot and approached them. Swain had the trunk of the car open, and it

appeared that he was selling items—cell phones and accessories—out of his

trunk. Swain told her he was selling items, but because he seemed evasive in

his answers, she asked to see his identification. Officer DeWall explained to

Swain and the two women that they could not sell from the roadway on city

property. Officer DeWall issued a citation to Swain for offering to sell goods and

services on city property, and Corporal Hutson told Swain that he was under

arrest for possession of a dangerous drug. Officer DeWall stated that she did not

see any officer use force on Swain at any time during the encounter.

The administrative records in Exhibit C contained, among other items,

Swain‘s arrest report for possession of the Protonix and Levitra and the incident

reports by Corporal Hutson, Officer DeWall, and Officer McLeod, another officer

that attended the scene. Exhibit C also contained the booking/record form, which

reflected a notation that Swain refused to sign it. The form contained a

9

statement that the person being booked had been given the opportunity to make

one free phone call within the local dialing area, or at his own expense if outside

the local dialing area, and that there were phones located in the dayroom area

and holding cells. Swain did not initial his acknowledgement of this statement.

Exhibit D reflected that we dismissed Swain‘s appeal of his itinerant

vending without a license conviction for want of jurisdiction because his notice of

appeal to this court was untimely. See Swain II, 319 S.W.3d at 879–80 (noting

that Swain failed to file his notice of appeal within thirty days of the county

criminal court‘s judgment).

E. Swain’s Response to the Other Employees’ Motion

Swain attached an affidavit to his response to the other employees‘ motion

in which he restated many of the same allegations in his amended petition.

Swain did not offer any evidence at the hearing on this motion. The trial court

granted the other employees‘ motion on February 5, 2011.

F. Procedural History

In addition to granting both motions, the trial court denied Swain‘s requests

for findings of fact and conclusions of law. This appeal followed.

III. Immunity

In his first two points, Swain complains that the trial court erred by

concluding that the judicial employees and the other employees have immunity

under 42 U.S.C. § 1983 and by dismissing his section 1983 claims against them.

10

A. Standard of Review

We review the trial court‘s grant of a plea to the jurisdiction de novo. Tex.

Dep’t of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 228 (Tex. 2004). If the

pleadings affirmatively negate the existence of jurisdiction, then they are

incurably defective, and the trial court may grant the plea to the jurisdiction

without giving the plaintiff an opportunity to amend. Id. at 226–27. However, a

trial court is not required to look solely to the pleadings; it may consider evidence

and must do so when necessary to resolve the jurisdictional issues. Id. at 227;

Wise Reg’l Health Sys. v. Brittain, 268 S.W.3d 799, 804 (Tex. App.—Fort Worth

2008, no pet.). In such cases, the defendant has the initial burden to support the

plea to the jurisdiction with evidence. City of Dallas v. Heard, 252 S.W.3d 98,

102 (Tex. App.—Dallas 2008, pet. denied); see Miranda, 133 S.W.3d at 228

(stating that this standard generally mirrors the traditional summary judgment

standard). If the defendant does so, the plaintiff must raise a jurisdictional fact

issue to survive the plea. Heard, 252 S.W.3d at 102; see Miranda, 133 S.W.3d

at 228. But if the evidence is undisputed or fails to raise a jurisdictional fact

issue, then the trial court rules on the plea as a matter of law. Miranda, 133

S.W.3d at 228; Heard, 252 S.W.3d at 102.

B. 42 U.S.C. § 1983

Section 1983 provides a civil cause of action for the deprivation of an

individual‘s federal statutory or constitutional rights:

11

Every person who, under color of any statute, ordinance, regulation,

custom, or usage, of any State . . . , subjects, or causes to be

subjected, any citizen of the United States . . . to the deprivation of

any rights, privileges, or immunities secured by the Constitution and

laws, shall be liable to the party injured in an action at law . . . .

42 U.S.C.A. § 1983 (West 2003).

A claimant can bring a section 1983 action against a public official in his

personal or official capacity. Kentucky v. Graham, 473 U.S. 159, 165, 105 S. Ct.

3099, 3105 (1985). Personal-capacity suits ―seek to impose personal liability

upon a government official for actions he takes under color of state law.‖ Id. at

165, 105 S. Ct. at 3105. Official-capacity suits, in contrast, are treated as suits

against the entity of which the officer is an agent. Id. at 165–66, 105 S. Ct. at

3105; Meadowbriar Home for Children, Inc. v. Gunn, 81 F.3d 521, 532–33 (5th

Cir. 1996) (recognizing that cities qualify as persons subject to suit under section

1983). If a section 1983 suit is brought against an entity, such as a city, the

plaintiff must show that the entity‘s policy or custom was the moving force behind

the constitutional violation. Graham, 473 U.S. at 166, 105 S. Ct. at 3105; Monell

v. Dep’t of Soc. Servs., 436 U.S. 658, 691, 98 S. Ct. 2018, 2036 (1978)

(recognizing that this requirement prevents a municipality from being held liable

on a section 1983 claim on a respondeat superior theory).

Under the doctrine of absolute immunity, judges are immune from section

1983 suits for their judicial acts unless they act in ―clear absence of all

jurisdiction.‖ Stump v. Sparkman, 435 U.S. 349, 355–57, 98 S. Ct. 1099, 1104–

05 (1978). Whether an act is a judicial act relates to the nature of the act itself—

―whether it is a function normally performed by a judge‖—and the expectations of

12

the parties—―whether they dealt with the judge in his judicial capacity.‖ Mireles v.

Waco, 502 U.S. 9, 12, 112 S. Ct. 286, 288 (1991) (per curiam).

The doctrine of qualified immunity shields an official performing

discretionary functions from liability for civil damages under section 1983,

provided that the official‘s conduct does not violate clearly established

constitutional or statutory rights of which a reasonable person would have been

aware. Babb v. Dorman, 33 F.3d 472, 477 (5th Cir. 1994) (recognizing that this

is ―immunity from suit, not simply immunity from liability‖); Leachman v. Dretke,

261 S.W.3d 297, 312 (Tex. App.—Fort Worth 2008, no pet.) (op. on reh‘g). Once

a government official who is sued in his personal capacity raises qualified

immunity, the burden shifts to the plaintiff to rebut this by showing, in pertinent

part, that he has alleged a violation of a constitutional right. Waltman v. Payne,

535 F.3d 342, 346 (5th Cir. 2008).

C. Analysis

1. Judicial Employees

In his first point, Swain argues that the trial court erred by determining that

it lacked jurisdiction over the judicial employees and by dismissing his section

1983 claims against them.

a. Official Capacity

Swain complained in his petition that Williams violated his due process

rights in her personal capacity6 and in her official capacity by refusing to timely

6

If a party provides no argument to support its position, the appellate court

may properly overrule the issue as inadequately briefed. Tex. R. App. P. 38.1(i);

Fredonia State Bank v. Gen. Am. Life Ins. Co., 881 S.W.2d 279, 284 (Tex. 1994)

(discussing ―long-standing rule‖ that issue may be waived due to inadequate

13

accept his appeal bond due to the City‘s policy or its failure to train its

employees. The judicial employees argued in their motion to dismiss that Swain

failed to allege facts sufficient to state an official-capacity claim under section

1983 and that, therefore, this claim was a mere tort claim barred by

governmental immunity.7 See Harris Cnty. v. Sykes, 136 S.W.3d 635, 638 (Tex.

2004) (stating that governmental immunity defeats subject matter jurisdiction

over a tort claim against a subdivision of the state unless the subdivision

expressly consents to suit); Karnes Cnty. v. Thomas, No. 04-06-00613-CV, 2007

WL 2261694, at *6 (Tex. App.—San Antonio Aug. 8, 2007, no pet.) (mem. op.)

(involving a similar relationship between governmental immunity and failure to

state a claim under section 1983).

Because Swain‘s official-capacity suit against Williams is essentially a

claim against the City, we consider whether Swain properly alleged in his petition

a violation of a federal right resulting from the City‘s policy. See Graham, 473

U.S. at 165–66, 105 S. Ct. at 3105; Pineda v. City of Houston, 291 F.3d 325, 331

briefing). To the extent that Swain alleged in his petition a personal-capacity

claim against Williams, he waived this claim on appeal because he neither

argued nor cited any authority for the proposition that Williams violated a law,

federal or otherwise. See Tex. R. App. P. 38.1(i); Clifton v. Walters, 308 S.W.3d

94, 99 (Tex. App.—Fort Worth 2010, pet. denied) (dismissing appellant‘s

contention because it was not supported by argument, analysis, or citation to

relevant authorities).

7

Of the claims that Swain asserted in his petition against the judicial

employees, only the claim against Williams referenced an official policy or

custom, so we interpret this as the only official-capacity claim. See Graham, 473

U.S. at 166, 105 S. Ct. at 3105.

14

(5th Cir. 2002) (recognizing that failure to train employees can constitute a policy

for which a city may be liable under section 1983), cert. denied, 537 U.S. 1110

(2003). Swain never alleged that Williams failed to accept the appeal bond on

the first day that Swain offered it to her. Instead, he merely alleged that he

tendered the check on March 2, 2007, that Williams initially refused it but later

accepted it, that she file-stamped it to show timely payment, that his appeal was

dismissed because the appeal bond was filed too late, and that this

demonstrated the existence of an unconstitutional City policy or the City‘s failure

to train its employees. Indeed, the stamp on the copy of the check that Swain

submitted at the judicial employees‘ hearing indicates that it was accepted on

March 2, 2007, and Williams‘s affidavit reflects the same. Therefore, Swain did

not allege a violation of a federal right, constitutional or otherwise. See Graham,

473 U.S. at 166, 105 S. Ct. at 3105.

While courts generally give plaintiffs an opportunity to amend insufficient

but curable pleadings such as these, a plaintiff can waive this by inaction. See

Haddix v. Am. Zurich Ins. Co., 253 S.W.3d 339, 347 (Tex. App.—Eastland 2008,

no pet.) (citing Kassen v. Hatley, 887 S.W.2d 4, 13–14 n.10 (Tex. 1994)). Here,

Swain waived his opportunity to cure the deficiency in his pleadings when he

failed to request permission to amend his petition as to these claims after the trial

court granted the judicial employees‘ plea to the jurisdiction. See Tex. A & M

Univ. Sys. v. Koseoglu, 233 S.W.3d 835, 839–40 (Tex. 2007) (deciding that the

opportunity to amend arises after a court finds the plea meritorious); Tara

15

Partners, Ltd. v. City of S. Houston, 282 S.W.3d 564, 578 (Tex. App.—Houston

[14th Dist.] 2009, pet. denied) (―By failing to seek permission to amend after the

trial court found the City‘s plea meritorious, appellants forfeited the opportunity to

amend . . . .‖). Therefore, because Swain failed to allege a violation of the only

federal right that he raised in his official-capacity claim, the City was entitled to

governmental immunity, see Sykes, 136 S.W.3d at 638, and we overrule this

portion of Swain‘s first point.

b. Personal Capacity

Swain complained in his petition that the judges violated his due process

rights by denying his motions for a new trial and also violated his right to a

speedy trial. Further, he generally alleged that judges violated his due process

rights by trying to force him to get an attorney.

The case history reports that the judicial employees included in Exhibits A

and B established that the judges made their rulings in response to motions that

Swain filed with the court, which showed that Swain‘s expectation was to deal

with each judge in his or her judicial capacity to obtain favorable rulings. See

Mireles, 502 U.S. at 12, 112 S. Ct. at 288. Additionally, rulings on motions for

new trial and motions to dismiss for failure to provide a speedy trial are functions

normally performed by a judge. Tex. Code Crim. Proc. Ann. arts. 28.061, 40.001

(West 2006); Mireles, 502 U.S. at 12, 112 S. Ct. at 288. Therefore, these judges‘

rulings were judicial acts that were entitled to absolute immunity from Swain‘s

section 1983 suit. See Stump, 435 U.S. at 355–57, 98 S. Ct. at 1104–05.

Accordingly, we overrule this portion of Swain‘s first point against the judicial

employees in their personal capacities.

16

Turning to the assertion that judges tried to force Swain to obtain an

attorney, the judicial employees‘ case history reports listed every filing and

recorded event in both cases, and the only evidence relating to this claim showed

that Swain acknowledged and waived his right to an attorney on his trial request

form. Because Swain took action to submit a written request such as this, we

can only conclude that he expected to deal with the judge in his or her judicial

capacity. See Mireles, 502 U.S. at 12, 112 S. Ct. at 288. Further, by including

notification of Swain‘s right to representation on this request form, the judge was

performing a function normally performed by a judge prior to a defendant‘s

voluntary and intelligent waiver of this right. See Tex. Code Crim. Proc. Ann. art.

1.051(f), (g) (West Supp. 2011); Mireles, 502 U.S. at 12, 112 S. Ct. at 288. In the

exhibits that Swain submitted before the hearing on the judicial employees‘

motion to dismiss, he did not include evidence that any judge tried to force him to

obtain an attorney; thus, he failed to raise a jurisdictional fact issue to overcome

the judicial employees‘ plea. See Miranda, 133 S.W.3d at 228; Heard, 252

S.W.3d at 102. Therefore, the judicial employees were entitled to judicial

immunity against this claim. See Stump, 435 U.S. at 355–57, 98 S. Ct. at 1104–

05. Accordingly, we overrule this portion of Swain‘s first point against the judicial

employees in their personal capacities.

In sum, because the City was entitled to governmental immunity against

Swain‘s official-capacity claim and the judicial employees were entitled to judicial

immunity against his personal-capacity claims, we overrule Swain‘s first point.

See Waltman, 535 F.3d at 346; Miranda, 133 S.W.3d at 228.

2. Other Employees

17

In his second point, Swain argues that the trial court erred by determining

that it lacked jurisdiction over the other employees and by dismissing his section

1983 claims against them.

a. Official Capacity

In their motion to dismiss, the other employees argued that Swain failed to

allege facts sufficient to state a claim under section 1983 and that, therefore, his

claims were mere tort claims barred by governmental immunity. See Sykes, 136

S.W.3d at 638; Karnes Cnty., 2007 WL 2261694, at *6. Because Swain‘s official-

capacity suit against the other employees is essentially a claim against the City,

we consider whether Swain‘s petition properly alleged constitutional violations

resulting from a policy or custom of the City. See Graham, 473 U.S. at 165–66,

105 S. Ct. at 3105.

In his petition, Swain alleged malicious prosecution8 for his initial arrest

and for the ―continued processing‖ of the charge. However, malicious

prosecution, standing alone, is not a recognized ground for a section 1983 claim.

Rogers v. Owings, No. 09-10-00587-CV, 2011 WL 1842756, at *10 (Tex. App.—

Beaumont May 12, 2011, no pet.) (mem. op.) (citing Castellano v. Fragozo, 352

F.3d 939, 942 (5th Cir. 2003) (―We decide that ‗malicious prosecution‘ standing

alone is no violation of the United States Constitution, and [that] to proceed under

42 U.S.C. § 1983 such a claim must rest upon a denial of rights secured under

8

Of the claims that Swain asserted in his petition against the other

employees, only the malicious prosecution claim referenced an official policy or

custom, so we interpret this as the only official-capacity claim. See Graham, 473

U.S. at 166, 105 S. Ct. at 3105.

18

federal and not state law.‖)). Within his malicious prosecution argument,

however, Swain generally alleged that the police officers lacked probable cause

to believe that his prescription drugs were dangerous drugs. Swain pleaded that

―Hutson knew, or should have known, that police do not arrest individuals for

possession of physician samples under any but the most extreme circumstances‖

and that the ―true basis of Swain‘s arrest was Hutson‘s motive to punish Swain

for his association with [the two women in the car].‖

Essentially, Swain alleged that the City was liable for a police officer‘s

actions that were motivated, not by a desire to comply with the City‘s policy or

custom, but by an association that the officer individually had with the parties

involved. Because a municipality cannot be held liable under section 1983 on a

respondeat superior theory, this allegation affirmatively negated the existence of

jurisdiction, and the trial court properly dismissed this portion of Swain‘s claim.

See Monell, 436 U.S. at 691, 98 S. Ct. at 2036 (emphasizing the importance of

distinguishing between individual violations perpetrated by local government

employees and those that can be fairly identified as actions of the government

itself); Miranda, 133 S.W.3d at 226–27.

Swain also claimed, in the alternative, that the City‘s failure to train

personnel caused Corporal Hutson‘s conduct, but he failed to allege or make any

reference to deliberate indifference, an essential element of failure-to-train claims

brought under section 1983. See Pineda, 291 F.3d at 331–32. Moreover, Swain

waived his opportunity to cure this deficiency when he failed to amend his

petition after the trial court granted the other employees‘ plea to the jurisdiction.

See Koseoglu, 233 S.W.3d at 839–40; Tara Partners, 282 S.W.3d at 578.

Because Swain failed to properly allege a section 1983 claim, the City was

19

entitled to governmental immunity, see Sykes, 136 S.W.3d at 638, and we

overrule this portion of Swain‘s second point.

b. Personal Capacity

Swain brought claims against the other employees in their personal

capacities alleging (1) assault and battery, (2) false arrest, (3) malicious

prosecution, (4) false imprisonment, (5) denial of due process, (6) an ex post

facto prosecution, and (7) fraud on the court.9

While Swain did not formally present evidence at the hearing to rebut the

other employees‘ evidence, he attached an affidavit to his response to the plea,

so we turn next to whether that evidence created a fact issue regarding any

alleged constitutional violations. See Waltman, 535 F.3d at 346; Miranda, 133

S.W.3d at 231 (considering an affidavit attached to the plea to the jurisdiction as

evidence); see also San Antonio Hous. Auth. Found., Inc. v. Smith, No. 04-10-

00759-CV, 2011 WL 3627699, at *5 (Tex. App.—San Antonio Aug. 17, 2011, no

pet.) (mem. op.) (considering evidence attached to the plaintiff‘s response to

determine if it raised a fact issue).

i. Assault and Battery

Swain alleged in his petition that Corporal Hutson committed assault and

battery on him in the course of his arrest and that Officer DeWall did not

intervene. Even if we interpret this as a section 1983 excessive force claim,

9

If a party provides no argument to support its position, the appellate court

may properly overrule the issue as inadequately briefed. Tex. R. App. P. 38.1(i);

Fredonia State Bank, 881 S.W.2d at 284. On appeal, Swain references a false

document but does not argue fraud on the court, nor does he provide any citation

to authority addressing fraud on the court. Therefore, this portion of Swain‘s

argument is inadequately briefed and is waived. See Tex. R. App. P. 38.1(i);

Clifton, 308 S.W.3d at 99.

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Swain failed to present any evidence of an injury, an essential element of such a

claim, to rebut the other employees‘ evidence that Corporal Hutson did not use

force on Swain, let alone injure him. See Bush v. Strain, 513 F.3d 492, 500–01

(5th Cir. 2008) (listing the ―injury‖ allegation as the threshold consideration before

evaluating the force that caused the injury). In his affidavit, Swain merely

asserted that Corporal Hutson ―pushed me forcefully against the vehicle I had

been driving, searched my pockets, then threw me to the ground and handcuffed

me.‖ See id. at 501 (finding that injury was properly alleged when evidence

showed not only that the police forcefully slammed the plaintiff into a vehicle but

also that the plaintiff sustained injuries to his face and jaw resulting in medical

expenses).

Because Swain has not shown that Corporal Hutson used excessive force,

no need for intervention arose, so Swain‘s failure-to-intervene claim against

Officer DeWall also fails. See Johnson v. Bradford, 72 Fed. Appx. 98, 2003 WL

21697174, at *1 (5th Cir. 2003) (citing Hale v. Townley, 45 F.3d 914, 919 (5th

Cir. 1995)). Because Swain failed to raise a fact issue regarding excessive force,

we overrule this portion of his second point pertaining to his claim against

Corporal Hutson and Officer DeWall in their personal capacities. See Miranda,

133 S.W.3d at 228; Heard, 252 S.W.3d at 102.

ii. False Arrest

Swain alleged in his petition that Corporal Hutson and Officer DeWall

arrested him for possession of drugs that they knew, or should have known, were

not ―dangerous drugs.‖ We interpret this as a Fourth Amendment claim asserting

lack of probable cause to arrest Swain for possession of dangerous drugs.

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―Probable cause exists when the totality of the facts and circumstances

within a police officer‘s knowledge at the moment of arrest are sufficient for a

reasonable person to conclude that the suspect had committed or was

committing an offense.‖ Mesa v. Prejean, 543 F.3d 264, 269 (5th Cir. 2008).

The prima facie elements of the offense for which Corporal Hutson needed to

have probable cause are (1) the possession of a drug that (2) is classified as

―dangerous.‖ See Tex. Health & Safety Code Ann. § 483.041(a) (West 2010); Ex

parte Charles, 582 S.W.2d 836, 837 (Tex. Crim. App. 1979) (holding that the

State must allege facts indicating why the drug is a dangerous drug when the

drug is not listed in the Dangerous Drug Act). While the possession of

dangerous drugs offense does not apply to drugs obtained from either a

pharmacist or a practitioner, these exceptions are not prima facie elements of the

offense. Tex. Health & Safety Code Ann. § 483.071 (West 2010) (stating that the

defendant has the burden to prove, and the State is not required to negate, the

exception, excuse, or exemption to prevail at trial); see id. §§ 483.041(a),

483.042(a) (West 2010) (stating that both exceptions require, in part, a valid

prescription as well as a label, attached directly to the bottle, that names the

prescribing practitioner). Thus, to meet their burden in their plea to the

jurisdiction, the police officers only had to show that ―the totality of the facts and

circumstances within [Corporal Hutson]‘s knowledge at the moment of the arrest

[we]re sufficient for a reasonable person to conclude‖ that Swain (1) possessed a

drug that (2) was classified as dangerous. See Mesa, 543 F.3d at 269 (defining

probable cause); Miranda, 133 S.W.3d at 228 (stating that the standard for pleas

to the jurisdiction generally mirrors the traditional summary judgment standard);

Havlen v. McDougall, 22 S.W.3d 343, 345 (Tex. 2000) (stating that a party

22

establishes its right to summary judgment ―by conclusively proving all elements

of the movant‘s cause of action or defense as a matter of law‖).

To this end, Corporal Hutson stated in his affidavit that Swain pulled two

blister packs containing Protonix and Levitra out of his left pocket. He also

asserted that he believed that these drugs were prescription pills ―identified as

dangerous drug[s] using the Drug Identification Bible 2004/2005 Edition.‖ In

response, Swain did not present evidence—that he possessed a valid

prescription and that the bottle displayed a label naming the prescribing

practitioner—of an exception to show that Corporal Hutson‘s belief that Swain

possessed dangerous drugs was anything but reasonable. See Tex. Health &

Safety Code Ann. §§ 483.041(a), 483.042(a), 483.071; Mesa, 543 F.3d at 269.

Indeed, he admitted to Corporal Hutson at the scene that he did not have a

prescription for the drugs with him. Because Corporal Hutson presented

uncontroverted evidence that Swain possessed drugs and uncontroverted

evidence of why Corporal Hutson believed that these were classified as

dangerous drugs, Swain failed to raise a fact issue regarding probable cause.

See Soto v. State, 810 S.W.2d 861, 864 (Tex. App.—Fort Worth 1991, pet. ref‘d)

(determining that probable cause for the dangerous-drug-possession arrest

existed when the drug‘s label stated that a prescription was required and the

defendant could not show that either exception applied).

Further, because ―the sum of the information known to the cooperating

agencies or officers at the time of an arrest or search by any of the officers

involved is to be considered in determining whether there was sufficient probable

cause,‖ we need not address whether Officer DeWall independently had

probable cause. See Woodward v. State, 668 S.W.2d 337, 344 (Tex. Crim. App.

23

1982), cert. denied, 469 U.S. 1181 (1985). Therefore, we overrule this portion of

Swain‘s second point pertaining to his claim against Corporal Hutson and Officer

DeWall in their personal capacities. See Miranda, 133 S.W.3d at 228; Heard,

252 S.W.3d at 102.

iii. Malicious Prosecution

Swain alleged in his petition that his arrest by Corporal Hutson and his

continued prosecution by unnamed City functionaries constituted malicious

prosecution. Because malicious prosecution is not a valid claim under section

1983, we must dismiss this claim unless we interpret Swain‘s petition to allege a

violation of a federal constitutional right for which he presented evidence raising

a fact issue. See Castellano, 352 F.3d at 942; Miranda, 133 S.W.3d at 228.

Within his malicious prosecution allegation, Swain asserted that Corporal Hutson

arrested him without probable cause, but as previously stated, Swain failed to

raise a fact issue regarding this claim. See Mesa, 543 F.3d at 269. Therefore,

we overrule this portion of Swain‘s second point pertaining to his claim against

Corporal Hutson and the Does in their personal capacities.

iv. False Imprisonment and Denial of Due Process

Swain alleged in his petition that Corporal Hutson and unnamed City

functionaries prevented Swain from making a phone call to arrange for his

release, which led to his false imprisonment for over six hours. While Swain did

not identify the resulting constitutional violation, he alleged the same facts in his

due process claim, and so we interpret this as such. See Baker v. McCollan, 443

U.S. 137, 142, 99 S. Ct. 2689, 2693–94 (1979) (interpreting the ―[section] 1983

false imprisonment action‖ for prolonged detention as a Fourteenth Amendment

claim for deprivation of liberty without due process). However, an isolated

24

deprivation of the right to make a telephone call is a trivial injury and is not

sufficient to constitute a constitutional violation. McCoy v. Gordon, 709 F.2d

1060, 1063 (5th Cir. 1983), disapproved of on other grounds by Augustine v.

Doe, 740 F.2d 322 (5th Cir. 1984). Therefore, Swain failed to raise a fact issue

on this portion of his due process claim against Corporal Hutson and the Does in

their personal capacities. See Miranda, 133 S.W.3d at 228; Heard, 252 S.W.3d

at 102. Accordingly, we overrule this portion of Swain‘s second point.

Swain also alleged that Corporal Hutson and Officer DeWall violated his

due process rights by not reading him his Miranda rights before taking him to jail.

However, the Fifth Amendment‘s privilege against self-incrimination ―can be

violated only at trial, even though pre-trial conduct by law enforcement officials

may ultimately impair that right.‖ Murray v. Earle, 405 F.3d 278, 285 (5th Cir.),

cert. denied, 546 U.S. 1033 (2005). Because Swain admits that the prosecution

dropped the charge for which Swain was arrested, no constitutional violation

occurred, and Swain failed to raise a fact issue on this portion of his due process

claim against Corporal Hutson and Officer DeWall in their personal capacities.

See id.; Miranda, 133 S.W.3d at 228; Heard, 252 S.W.3d at 102. Accordingly,

we overrule this portion of Swain‘s second point.

Additionally, Swain alleged in his petition that Corporal Hutson and Officer

DeWall violated his due process rights by taking him directly into custody without

taking him before a magistrate. Under the Fourth Amendment, a judicial officer

must make a prompt probable cause determination ―as a prerequisite to

extended restraint of liberty following arrest.‖ Gerstein v. Pugh, 420 U.S. 103,

114, 125 n.26, 95 S. Ct. 854, 863, 869 n.26 (1975) (noting that this ―is required

only for those suspects who suffer restraints on liberty other than the condition

25

that they appear for trial‖). Such determinations within forty-eight hours of arrest

generally comply with this promptness requirement. Cnty. of Riverside v.

McLaughlin, 500 U.S. 44, 56, 111 S. Ct. 1661, 1670 (1991) (stating that

determinations made within this time frame might still violate the Fourth

Amendment if the arrestee can show unreasonable delay).

Swain stated in both his petition and his affidavit that he was released on

bond approximately six hours after police took him into custody, which was seven

hours after his arrest and well within the forty-eight-hour requirement. Further,

the police submitted evidence that there were no conditions on Swain‘s release

on bond. In response, Swain did not allege or present evidence that his probable

cause determination was unreasonably delayed during the hours before his

release or that any restraints upon his liberty existed after his release. See id. at

44, 111 S. Ct. at 1670; Gerstein, 420 U.S. at 114, 125 n.26, 95 S. Ct. at 863, 869

n.26. Thus, Swain failed to raise a fact issue on this portion of his due process

claim against Corporal Hutson and Officer DeWall in their personal capacities.

See Telles v. City of El Paso, 481 F. Supp. 2d 773, 779 (W.D. Tex. 2007)

(affirming the finding of qualified immunity because the arrestee was released on

bail on the day of his arrest and failed to show evidence of either an

unreasonably delayed probable cause determination or a continued restraint on

his liberty). Accordingly, we overrule this portion of Swain‘s second point.

Finally, Swain alleged in his petition that Sergeant Henning, an unnamed

police officer, and unnamed clerks violated his constitutional rights by telling

Swain to leave the police station, refusing to return his possessions or give him

information about his case, and telling him to leave the clerk‘s office when he

tried to pay his appeal bond. However, on appeal, Swain provides no citations to

26

relevant authority to support his contention that the trial court erred by dismissing

these claims. Therefore, Swain‘s argument as to these claims is inadequately

briefed and is waived. See Tex. R. App. P. 38.1(i); Fredonia State Bank, 881

S.W.2d at 284.

Because Swain failed to raise a fact issue on each of his due process

allegations, we overrule this portion of Swain‘s claim against the police officers

and the Does in their personal capacities. See Miranda, 133 S.W.3d at 228;

Heard, 252 S.W.3d at 102.

v. Ex Post Facto Claim

Finally, Swain alleged in his petition that unnamed City functionaries

violated his constitutional rights by instituting ―ex post facto charges‖ when they

mailed him the citation for itinerant vending without a license. The United States

Constitution prohibits states from passing an ex post facto law, which is one that,

in pertinent part, criminalizes and punishes an act that was done before the

passage of the law and that was innocent when done. U.S. Const. art. I, § 10,

cl. 1; Collins v. Youngblood, 497 U.S. 37, 42, 110 S. Ct. 2715, 2719 (1990). In

response to the other employees‘ evidence that Swain committed itinerant

vending without a license on August 30, 2006, Swain did not allege or present

any evidence that the law was passed after that date, such that it criminalized

conduct that was innocent at the time of his arrest. See Collins, 497 U.S. at 42,

110 S. Ct. at 2719. Instead, he merely claimed that the citation was sent five

months after the date of the incident and was pretextual, which did not satisfy his

burden to allege a constitutional violation. See United States v. Marion, 404 U.S.

307, 322, 92 S. Ct. 455, 464 (1971) (recognizing that the applicable statute of

limitations is the primary guarantee against bringing an overly stale criminal

27

charge); Waltman, 535 F.3d at 346. Because Swain failed to raise a fact issue

regarding an ex post facto violation, we overrule this final portion of his second

point pertaining to his claim against the Does in their personal capacities. See

Miranda, 133 S.W.3d at 228; Heard, 252 S.W.3d at 102.

In sum, because the City was entitled to governmental immunity against

the official-capacity claims and the other employees were entitled to qualified

immunity against the personal-capacity claims, we overrule Swain‘s second

point. See Waltman, 535 F.3d at 346; Miranda, 133 S.W.3d at 228.

IV. Findings of Fact and Conclusions of Law

In his third point, Swain argues that the trial court erred by refusing to

prepare findings of fact and conclusions of law after it granted each motion to

dismiss.

When a judgment is rendered as a matter of law, findings and conclusions

have no purpose and should not be requested or considered on appeal. IKB

Indus. (Nigeria) Ltd. v. Pro-Line Corp., 938 S.W.2d 440, 443 (Tex. 1997). This is

especially true when a plea to the jurisdiction does not involve disputed facts. F-

Star Socorro, L.P. v. El Paso Cent. Appraisal Dist., 324 S.W.3d 172, 175 (Tex.

App.—El Paso 2010, no pet.) (―Absent a fact question, a trial court‘s decision

granting or denying a plea to the jurisdiction is a question of law . . . .‖).

Therefore, even when the trial court receives evidence, findings and conclusions

are only appropriate if the trial court is called upon to determine questions of fact

upon conflicting evidence. Port Arthur Indep. Sch. Dist. v. Port Arthur Teachers

Ass’n, 990 S.W.2d 955, 958 (Tex. App.—Beaumont 1999, pet. denied); see

Haddix, 253 S.W.3d at 346 (deciding that, even though parties attached evidence

to their filings, findings and conclusions were not required because the evidence

28

was undisputed); Ford v. City of Lubbock, 76 S.W.3d 795, 796–98 (Tex. App.—

Amarillo 2002, no pet.) (holding that, although evidence was attached to the plea

and to the response, findings and conclusions could not properly be considered

on appeal because no fact dispute existed).

We determined above that Swain either failed to properly allege or failed to

raise a fact issue on the constitutional violations that he claimed the judicial

employees and other employees committed in their official and personal

capacities. Thus, even though both sides submitted evidence, the trial court‘s

dismissal of the claims against these employees did not involve disputed facts

but was decided as a matter of law. See F-Star, 324 S.W.3d at 175; Haddix, 253

S.W.3d at 346; Ford, 76 S.W.3d at 796–98. Accordingly, findings of fact and

conclusions of law were not appropriate, and the trial court did not err by refusing

to prepare them after granting these employees‘ pleas to the jurisdiction. See

Pro-Line, 938 S.W.2d at 443; Port Arthur, 990 S.W.2d at 958. Therefore, we

overrule Swain‘s third point.

V. Conclusion

Having overruled all of Swain‘s points, we affirm the trial court‘s judgment.

BOB MCCOY

JUSTICE

PANEL: MCCOY, MEIER and GABRIEL, JJ.

DELIVERED: December 22, 2011

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