Rolen v. City Brownfield TX

United States Court of Appeals

Fifth Circuit

F I L E D

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT May 30, 2006

Charles R. Fulbruge III

Clerk

No. 04-11469

Summary Calendar

APRIL RENEA ROLEN; KARLA ROLEN CLARK; L.D. CLARK,

Plaintiffs-Appellants,

versus

CITY OF BROWNFIELD, TEXAS; BROWNFIELD POLICE DEPARTMENT;

RAFAEL TORRES; JOHN DOES,

Defendants-Appellees.

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Appeal from the United States District Court

for the Northern District of Texas

USDC No. 5:03-CV-304

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Before BARKSDALE, STEWART, and CLEMENT, Circuit Judges.

PER CURIAM:*

Plaintiffs, April Renea Rolen, Karla Rolen Clark, and L.D.

Clark (the plaintiffs) appeal the dismissal on summary judgment

of their 42 U.S.C. § 1983 claims against Officer Rafael Torres,

the Brownfield Police Department (BPD), and the City of

Brownfield (the City). Finding no error, we affirm.

We review the district court’s grant of summary judgment de

novo, under the standard set forth in FED. R. CIV. P. 56. See

Cousin v. Small, 325 F.3d 627, 637 (5th Cir. 2003). With respect

*

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

this opinion should not be published and is not precedent except

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

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to the defendants’ claims of qualified immunity, the plaintiffs

must show that a government official violated a constitutional

right that was clearly established at the time of the alleged

violation and that the official’s actions were objectively

unreasonable. Eugene v. Alief Indep. Sch. Dist., 65 F.3d 1299,

1305 (5th Cir. 1995). With respect to the liability of the City,

the plaintiffs must demonstrate both that a municipal employee

violated a clearly-established constitutional right and that the

violation was the result of a municipal policy or custom.

Olabisiomotosho v. City of Houston, 185 F.3d 521, 528-29 (5th

Cir. 1999).

We are mindful of the plaintiffs’ pro se status, and we hold

a pro se plaintiff’s brief to a less stringent standard than a

brief filed by counsel. See Grant v. Cuellar, 59 F.3d 523, 524

(5th Cir. 1995). Nevertheless, even pro se plaintiffs must brief

issues to preserve them and comply with the Federal Rules of

Appellate Procedure. Id.

At the outset we consider whether the BPD may be sued. The

district court did not err in dismissing the claims against the

BPD because it was not a juridical entity capable of being sued.

See Darby v. Pasadena Police Dep’t, 939 F.2d 311, 313 (5th Cir.

1991). With Officer Torres and the City as the only remaining

defendants, we consider the merits.

The district court correctly determined that there was no

violation of a clearly-established constitutional right with

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respect to the plaintiffs’ claims that the defendants violated

their constitutional rights by using April Rolen as an undercover

informant in a drug operation while she was a minor and without

her parents’ consent. Even accepting as true that the officers

knew or should have known that April was a minor and that her

parents had not consented, the due process right of family

integrity implicated by these actions is nebulous and undefined.

Thus, we cannot say that a reasonable officer would have

understood that such actions violated this particular right.

Hodorowski v. Ray, 844 F.2d 1210, 1217 (5th Cir. 1988). Although

the plaintiffs argue that various defendants perjured themselves

regarding the use of April in the drug sting, whether the

defendants’ declarations were incorrect does not affect the

determination that, as a matter of law, there was no clearly-

established right.

In the district court, the plaintiffs alleged various

instances of harassment of April Rolen. They do not brief this

issue on appeal and the issue may, therefore, be deemed

abandoned. See Yohey v. Collins, 985 F.2d 222, 224-25 (5th Cir.

1993). The claim concerning the unlawful arrest of April Rolen

and the impounding of her car likewise is not briefed on appeal

and may, therefore, be deemed abandoned. Id.

The plaintiffs’ contention that L.D. Clark was not allowed

to present various complaints at a City Council meeting is

without merit. The audiotape of that meeting shows that Clark

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was afforded an opportunity to present his assertions. The

request that he “wrap up” his remarks due to the council’s need

to address other business did not infringe on his constitutional

rights because it was not based on the content of the speech.

See Heffron v. International Soc. for Krishna Consciousness,

Inc., 452 U.S. 640, 647 (1981).

The plaintiffs next assert that the defendants violated

their rights by failing to investigate an alleged sexual assault

on April Rolen. Failure to investigate or prosecute an offense

does not give rise to § 1983 liability. See Piotrowski v. City

of Houston, 237 F.3d 567, 582 (5th Cir. 2001). This claim is

without merit.

The plaintiffs also argue that the City failed to conduct an

investigation of the use of April in the drug sting. Even if the

failure to investigate constituted some actionable misconduct,

this single failure by the City to investigate does not give rise

to liability as it does not show a policy or custom. See Fraire

v. City of Arlington, 957 F.2d 1268, 1278 (5th Cir. 1992).

The plaintiffs next assert that L.D. Clark was unlawfully

arrested pursuant to an invalid arrest warrant for a violation of

an ordinance regarding weeds. However, this claim is

contradicted by Clark’s own statements that the officer did not

arrest him as well as by the uncontroverted declaration of the

officer that the warrant was not served and that Clark was not

arrested. Even if Clark was detained while the officer verified

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the information in the warrant, there is no evidence that such

detention was unreasonable. See United States v. Jordan, 232

F.3d 447, 448 (5th Cir. 2000) (“An officer may, consistent with

the Fourth Amendment, conduct a brief investigatory stop when the

officer has a reasonable, articulable suspicion that criminal

activity is afoot.”); Duckett v. City of Cedar Park, 950 F.2d

272, 280 (5th Cir. 1992)(arrest pursuant to facially valid

warrant not unconstitutional although warrant later was

determined to be invalid). Accordingly, the district court

properly granted summary judgment on this claim.

The plaintiffs argue that the district court failed to give

their pleadings the liberal construction required by their pro se

status. This contention is without merit. The district court

engaged in a lengthy and detailed analysis of the plaintiffs’

numerous claims, broadly construing their vague claims as

asserting specific constitutional violations. As to any

procedural errors by the plaintiffs in opposing the summary

judgment motion, even pro se litigants must comply with the

Federal Rules of Civil Procedure and present proper summary

judgment evidence. See Gordon v. Watson, 622 F.2d 120, 123 (5th

Cir. 1980).

The district court did not abuse its discretion in denying

the request that counsel be appointed for April Rolen. This case

presents no exceptional circumstances warranting such

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appointment. See Richardson v. Henry, 902 F.2d 414, 417 (5th

Cir. 1990).

The plaintiffs sought leave to amend to add a number of

defendants on their claims relating to the drug sting. The

district court’s denial of the motion to amend was not an abuse

of discretion, because any amendment to add defendants on a claim

that had no merit would have been futile. See Martin’s Herend

Imports, Inc. v. Diamond & Gem Trading United States of Am. Co.,

195 F.3d 765, 771 (5th Cir. 1999).

Finally, the plaintiffs move to supplement the record on

appeal with 17 exhibits. The first 14 exhibits were already part

of the district court record. The remaining three exhibits,

declarations by each of the plaintiffs, were not submitted to the

district court. Accordingly, they may not be considered on

appeal. See Topalian v. Ehrman, 954 F.2d 1125, 1131 n.10 (5th

Cir. 1992).

For the foregoing reasons, the judgment of the district

court is affirmed. The motion to supplement the record on appeal

is denied. We do not reach the plaintiffs’ request that this

case be assigned to a different judge on remand.

AFFIRMED; MOTION TO SUPPLEMENT DENIED.