holding that county did not waive its immunity from liability by removing case to federal court where it asserted sovereign immunity as an affirmative defense in its answer and legislature had not expressly waived immunity from liability on plaintiff’s claims
How later courts described this case
- holding that county did not waive its immunity from liability by removing case to federal court where it asserted sovereign immunity as an affirmative defense in its answer and legislature had not expressly waived immunity from liability on plaintiff’s claims
- finding that a Texas officer was entitled to qualified immunity when all he knew was that the defendant had been asked to leave, did not do so, and was still on the scene when the officer arrived
Written by the judges who cited it.
The opinion
Case: 15-20505 Document: 00513517477 Page: 1 Date Filed: 05/23/2016
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 15-20505 United States Court of Appeals
Summary Calendar Fifth Circuit
FILED
May 23, 2016
ROBERT ANTHONY SKINNER, Lyle W. Cayce
Clerk
Plaintiff - Appellant
v.
JEFFREY SCOTT GRAGG; CONSTABLE PHIL CAMUS; METRO
NATIONAL CORPORATION; MEMORIAL CITY MALL, GP, L.L.C.;
MEMORIAL CITY MALL, L.P.; BLEX EXCHANGE, L.P.; BLEX
EXCHANGE VI, L.L.C.; HARRIS COUNTY, TEXAS,
Defendants - Appellees
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 4:14-CV-1412
Before KING, CLEMENT, and OWEN, Circuit Judges.
PER CURIAM:*
After he was arrested for criminal trespass, Plaintiff–Appellant Robert
Anthony Skinner sued Defendants–Appellees, alleging numerous violations of
his constitutional rights and raising several state tort claims. The district
* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
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No. 15-20505
court granted Defendants–Appellees’ motions for summary judgment,
dismissing all of Skinner’s claims. Skinner now appeals the district court’s
judgment that Defendant–Appellee Jeffrey Scott Gragg was entitled to
qualified immunity on Skinner’s unlawful arrest claim and that Defendant–
Appellee Harris County was entitled to sovereign immunity on Skinner’s state
tort claims. For the following reasons, we AFFIRM the judgment of the district
court.
I. FACTUAL AND PROCEDURAL BACKGROUND
On December 22, 2012, Plaintiff–Appellant Robert Anthony Skinner and
several employees of his private security company visited the Memorial City
Mall to conduct a training exercise. 1 Skinner’s brother, Richard Cain, and an
employee of the private security company, Chris Watt, attempted to reserve a
parking space for Skinner in the parking lot. When Skinner arrived, Cain and
Watt were speaking with a mall security officer. The mall security officer had
informed Cain and Watt that mall patrons could not reserve parking spots and
directed Skinner to leave the parking space. During this exchange, the mall
security officer also radioed Defendant–Appellee Jeffrey Gragg—an off-duty
sergeant from the Harris County Constable’s Office who was working as
additional security for the mall—informing Gragg that several individuals
were refusing to leave. Gragg directed the mall security officer to advise them
that “if [they] were still there upon the deputy’s arrival, [they] would be
arrested for trespassing.”
Skinner moved his vehicle out of the parking space and then returned to
speak further with the mall security officer. Skinner and his companions
continued to remain in the mall parking lot, speaking to the officer. A mall
1The private security company, Ultra Protection, Inc., was also a plaintiff before the
district court, but the company has not made an appearance or filed briefing as part of this
appeal.
2
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No. 15-20505
security supervisor arrived and directed Skinner to leave mall property. Soon
thereafter, as Skinner turned to walk back to his vehicle, Gragg arrived and
arrested Skinner for criminal trespass. Skinner was charged with
misdemeanor criminal trespass, but the charge was later dismissed. 2
On April 21, 2014, Skinner and his private security company filed suit
against several defendants, including Gragg and Harris County, alleging, inter
alia, unlawful arrest in violation of the United States Constitution and several
Texas tort claims. Harris County and Gragg removed the case to the United
States District Court for the Southern District of Texas, asserting federal
question jurisdiction under 28 U.S.C. § 1331. Between March 30 and April 1,
2015, Defendants filed motions for summary judgment on all claims.
On August 13, 2015, the district court granted the summary judgment
motions. As relevant to this appeal, the district court found that Gragg was
entitled to qualified immunity on Skinner’s unlawful arrest claim because
there arguably was probable cause to arrest Skinner for criminal trespass. The
court noted that Skinner and his employees had been ordered to leave the
property before Gragg arrived and that Gragg had probable cause to arrest
Skinner upon finding Skinner still at the scene when Gragg arrived. The court
also found that removing the action to federal court did not waive Harris
County’s sovereign immunity from liability. Looking to Texas state law, the
district court held that Harris County was entitled to sovereign immunity from
liability on all of the state tort claims. 3 The district court then granted
summary judgment as to other claims raised by Skinner against Gragg, Harris
2 In the State’s request for dismissal in the criminal case, the State asserted that it
was “unable to prove BRD” as the reason for requesting dismissal.
3 The district court also held that Harris County could not be liable for the negligence
claim because the court had already found that Gragg was entitled to official immunity on
that claim.
3
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County, and the other defendants, and entered final judgment dismissing the
action. Skinner timely appealed.
II. STANDARD OF REVIEW
We review a district court’s grant of summary judgment de novo,
“applying the same standard as the district court did in the first instance.”
Raby v. Livingston, 600 F.3d 552, 557 (5th Cir. 2010). 4 Summary judgment is
proper “if the movant shows that there is no genuine dispute as to any material
fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ.
P. 56(a). “A genuine dispute as to a material fact exists ‘if the evidence is such
that a reasonable jury could return a verdict for the nonmoving party.’” Rogers
v. Bromac Title Servs., L.L.C., 755 F.3d 347, 350 (5th Cir. 2014) (quoting
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)). “[T]his court
construes ‘all facts and inferences in the light most favorable to the nonmoving
party.’” McFaul v. Valenzuela, 684 F.3d 564, 571 (5th Cir. 2012) (quoting
Dillon v. Rogers, 596 F.3d 260, 266 (5th Cir. 2010)).
III. QUALIFIED AND SOVEREIGN IMMUNITY
On appeal, Skinner has preserved two alleged errors by the district
court: the court’s findings that (1) Gragg was entitled to qualified immunity on
the unlawful arrest claim 5 and (2) Harris County was entitled to sovereign
immunity on the state tort claims. 6 We address each in turn.
4 Skinner argues on appeal that the district court erred by applying the federal
summary judgment standard, but “federal law, rather than state law, invariably governs
procedural matters in federal court.” Camacho v. Tex. Workforce Comm’n, 445 F.3d 407, 409
(5th Cir. 2006); see also Fed. R. Civ. P. 81(c)(1).
5 In his briefing, Skinner contends that the district court mischaracterized the
evidence, but his arguments on this issue relate to the factual and legal support for the
district court’s finding that Gragg was entitled to qualified immunity on the unlawful arrest
claim.
6 While pro se briefs are liberally construed, Skinner has abandoned all other issues
by failing to adequately brief them on appeal. See Yohey v. Collins, 985 F.2d 222, 224–25
(5th Cir. 1993) (stating that arguments are abandoned by “failing to argue them in the body
of the brief”).
4
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No. 15-20505
A. Qualified Immunity
Skinner contends that Gragg was not entitled to qualified immunity on
Skinner’s claim for unlawful arrest. “Qualified immunity protects government
officials from liability for civil damages to the extent that their conduct is
objectively reasonable in light of clearly established law.” Crostley v. Lamar
Cty., 717 F.3d 410, 422 (5th Cir. 2013). “[T]he plaintiff has the burden to
negate the assertion of qualified immunity once properly raised.” Collier v.
Montgomery, 569 F.3d 214, 217 (5th Cir. 2009). A plaintiff must satisfy a two-
prong inquiry to overcome a qualified immunity defense: “First, he must claim
that the defendants committed a constitutional violation under current law.
Second, he must claim that the defendants’ actions were objectively
unreasonable in light of the law that was clearly established at the time of the
actions complained of.” Crostley, 717 F.3d at 422 (quoting Atteberry v. Nocona
Gen. Hosp., 430 F.3d 245, 253 (5th Cir. 2005)). We may conduct the two-prong
inquiry in any order. Pearson v. Callahan, 555 U.S. 223, 236 (2009).
“The Fourth Amendment requires that an arrest be supported by a
properly issued arrest warrant or probable cause.” Glenn v. City of Tyler, 242
F.3d 307, 313 (5th Cir. 2001). 7 “Probable cause exists when the totality of 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.” United States v. Ramirez, 145 F.3d
345, 352 (5th Cir. 1998). Gragg previously had been informed by radio that
individuals were refusing to leave as directed, and when he arrived, he found
7 On appeal, Skinner contends that collateral estoppel barred the district court from
determining probable cause because a state criminal court dismissed the criminal trespass
charge. However, collateral estoppel does not apply because nothing in the record shows that
the parties in state court “fully and vigorously litigated [the issue of probable cause] in the
prior action.” Kariuki v. Tarango, 709 F.3d 495, 506 (5th Cir. 2013) (quoting United States
v. Shanbaum, 10 F.3d 305, 311 (5th Cir. 1994)).
5
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Skinner still present in the parking lot on mall property. See Tex. Penal Code
Ann. § 30.05(a)(2) (providing that a person commits criminal trespass if he or
she “remains on or in property of another . . . without effective consent” and he
or she “received notice to depart but failed to do so”). Based on these facts, “a
reasonable officer could have concluded that there was probable cause” to
arrest Skinner for criminal trespass. Brown v. Lyford, 243 F.3d 185, 190 (5th
Cir. 2001). 8 The district court, therefore, did not err in finding that Gragg was
entitled to qualified immunity as to the unlawful arrest claim. See id. (“[I]f a
reasonable officer could have concluded that there was probable cause upon
the facts then available to him, qualified immunity will apply.”).
B. Sovereign Immunity
Skinner also argues that the district court erred in granting summary
judgment on Skinner’s state law claims based on sovereign immunity, alleging
that Harris County waived its sovereign immunity by removing the case to
federal court. Removing a case to federal court does waive immunity from suit.
Lapides v. Bd. of Regents of Univ. Sys. of Ga., 535 U.S. 613, 624 (2002).
However, while Skinner contends that removal waives immunity entirely, this
court has clarified that “the Constitution permits and protects a state’s right
to relinquish its immunity from suit while retaining its immunity from
liability.” Meyers ex rel. Benzing v. Texas, 410 F.3d 236, 255 (5th Cir. 2005).
And Texas law provides that “sovereign immunity encompasses both immunity
from suit and immunity from liability.” Brown & Gay Eng’g, Inc. v. Olivares,
8 Skinner notes that the district court did not consider several other pieces of evidence,
including audio and video recordings and affidavits. However, none of that evidence was
presented to the district court. See Ragas v. Tenn. Gas Pipeline Co., 136 F.3d 455, 458 (5th
Cir. 1998) (“The party opposing summary judgment is required to identify specific evidence
in the record and to articulate the precise manner in which that evidence supports his or her
claim.”). Similarly, while Skinner contends that Gragg resisted being deposed, Skinner
requested that Gragg be deposed after the discovery period had ended and never sought the
district court’s assistance to resolve any discovery dispute.
6
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No. 15-20505
461 S.W.3d 117, 121 (Tex. 2015). Moreover, “[u]nder Texas law, waiver of one
form of immunity does not necessarily operate as a waiver of the other.” Carty
v. State Office of Risk Mgmt., 733 F.3d 550, 553 (5th Cir. 2013). Instead,
immunity from liability is waived if either the Legislature waived this
immunity “by clear and unambiguous language,” DeWitt v. Harris Cty., 904
S.W.2d 650, 652 (Tex. 1995), or if the defendant failed to assert sovereign
immunity as an affirmative defense. Carty, 733 F.3d at 555 (citing Tex. Dep’t
of Transp. v. Jones, 8 S.W.3d 636, 638 (Tex. 1999) (per curiam)). Harris County
asserted sovereign immunity as an affirmative defense in its answer, and
Skinner has not advanced any colorable argument that the Legislature has
expressly waived immunity from liability on his claims. Harris County’s
removal of the case to federal court, therefore, did not act as a waiver of its
immunity from liability, see Meyers, 410 F.3d at 253, and the district court did
not err in granting summary judgment on the ground of sovereign immunity. 9
IV. CONCLUSION
For the foregoing reasons, we AFFIRM the judgment of the district court.
9 Moreover, Skinner does not appeal the district court’s finding that Gragg was
entitled to official immunity as to Skinner’s negligence claim, and thus Harris County retains
its sovereign immunity for this claim. See DeWitt, 904 S.W.2d at 653 (holding that “if [a
government] employee is protected from liability by official immunity, . . . the government
retains its sovereign immunity”).
7