Hoog-Watson v. Guadalupe County, Tex.

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT United States Court of Appeals

Fifth Circuit

FILED

December 16, 2009

No. 08-50077 Charles R. Fulbruge III

Clerk

SUZANNE HOOG-WATSON,

Plaintiff-Appellant

v.

GUADALUPE COUNTY TEXAS; ELIZABETH MURRAY-KOLB, Individually

and as Guadalupe County Attorney; FRANK ALLENGER, Individually and as

Guadalupe County Attorney Investigator; JOLENE MARTINEZ, Individually

and as Guadalupe County Animal Control Supervisor; KRISTEN

MOCZYGEMBA, Individually and as Guadalupe County Animal Control Officer;

DOUG PYATT, Individually and as Guadalupe County Animal Control Officer;

JENNIFER KUHN, Individually,

Defendants-Appellees

Appeal from the United States District Court for the

Western District of Texas, San Antonio Division

Before BARKSDALE, DENNIS, and ELROD, Circuit Judges.

JENNIFER WALKER ELROD, Circuit Judge:

The plaintiff in this case, Suzanne Hoog-Watson, seeks redress for the

actions of county officials who, fearing for the safety of Hoog-Watson’s dogs and

cats, conducted a warrantless search of her property and seized her animals.

The district court granted summary judgment in favor of the defendants by

No. 08-50077

relying upon the principles of Heck v. Humphrey, 512 U.S. 477 (1994), and

prosecutorial immunity. Hoog-Watson appeals. We reverse and remand.

I

A

In this summary judgment appeal, we take the facts in the light most

favorable to the appellant. See, e.g., Kinney v. Weaver, 367 F.3d 337, 348 (5th

Cir. 2004) (en banc). Hoog-Watson kept various pets at her home in Seguin, a

small city in Guadalupe County, Texas. Guadalupe County employed Elizabeth

Murray-Kolb as County Attorney, Frank Allenger as County Attorney

Investigator, Jolene Martinez as Sheriff’s Department Animal Control

Supervisor, and Kristen Moczygemba and Doug Pyatt as Sheriff’s Department

Animal Control Officers; Seguin employed Jennifer Kuhn as Animal Control

Supervisor, while nearby Schertz, Texas employed Heather Barker as Animal

Control Supervisor, and Lynn Wilson and Christy Peltonan as Animal Control

Officers. In August 2005, several of the officials developed a suspicion that

Hoog-Watson could not provide proper care for her animals, and upon hearing

that Hoog-Watson had moved to a mental health facility—a rumor that later

turned out to be false—the officials suspected that the animals would soon suffer

serious injury. Four officials, including Murray-Kolb, went to Hoog-Watson’s

home when she was not present, conducted a warrantless search of the premises,

perceived an eminent danger to Hoog-Watson’s animals’ health, and seized 47

dogs and cats. The officials acquired a warrant the next day. Later that month,

Murray-Kolb brought a proceeding against Hoog-Watson before the local Justice

of the Peace. Before any hearing took place, the two reached an agreement

wherein Murray-Kolb dropped the charges and Hoog-Watson agreed to pay some

of the county’s costs and submit to periodic inspections.

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B

Hoog-Watson sued Guadalupe County, Murray-Kolb, Allenger, Martinez,

Moczygemba, and Pyatt in the United States District Court for the Western

District of Texas, asserted that the search and seizure had violated 42 U.S.C.

§ 1983 and Texas tort law, and sought both monetary and injunctive relief. See

28 U.S.C. §§ 1331,1367.1 Together, the defendants filed a motion for summary

judgment that asserted various grounds for dismissing Hoog-Watson’s claims,

including collateral estoppel (citing Heck, 512 U.S. 477), qualified immunity,

official immunity, and prosecutorial immunity; after Hoog-Watson responded,

the district court held a hearing on the motion. The district court granted the

motion with respect to the federal claims by concluding that the defendants’

collateral estoppel argument defeated Hoog-Watson’s § 1983 claims against all

of the defendants, and by concluding that prosecutorial immunity argument

defeated Hoog-Watson’s § 1983 claim against Murray-Kolb.2 After denying the

defendants’ motion with respect to the Texas tort claims, the district court

dismissed the state claims without prejudice to be refiled in state court, and

entered a final judgment. Hoog-Watson appeals the dismissal of her federal

claims.

II

We review a district court’s grant of summary judgment de novo, and

apply the same standard as the trial court. E.g., Beck v. Tex. State Bd. of Dental

Exam’rs, 204 F.3d 629, 633 (5th Cir. 2000); see Fed. R. Civ. P. 56(c). The district

court’s decision concerning Heck v. Humphrey, 512 U.S. 477 (1994), disposed of

the § 1983 claims against all of the defendants, and its prosecutorial immunity

decision provided an additional reason to grant the motion with respect to

1

Hoog-Watson also named Kuhn, Barker, Wilson, and Peltonan as defendants, but

later agreed to an order dismissing all of the claims against those defendants with prejudice.

2

The district court declined to reach the defendants’ qualified immunity argument.

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No. 08-50077

Murray-Kolb. Hoog-Watson contests both of the decisions, and we address each

in turn. We also address the parties’ arguments concerning qualified immunity.

A

In her first issue, Hoog-Watson argues that the district court erred when

it concluded that the doctrine of Heck, 512 U.S. 477, barred Hoog-Watson’s

§ 1983 claim. Heck established the following rule:

[W]hen a state prisoner seeks damages in a § 1983 suit, the district

court must consider whether a judgment in favor of the plaintiff

would necessarily imply the invalidity of his conviction or sentence;

if it would, the complaint must be dismissed unless the plaintiff can

demonstrate that the conviction or sentence has already been

invalidated. But if the district court determines that the plaintiff’s

action, even if successful, will not demonstrate the invalidity of any

outstanding criminal judgment against the plaintiff, the action

should be allowed to proceed, in the absence of some other bar to the

suit.

Id. at 487 (footnote omitted). As the parties recognize, Heck applies only to suits

that implicate prior criminal proceedings, see, e.g., Ballard v. Burton, 444 F.3d

391, 397 (5th Cir. 2006) (“The policy undergirding the favorable termination rule

is based on ‘the hoary principle that civil tort actions are not appropriate

vehicles for challenging the validity of outstanding criminal judgments.’”).

According to the defendants, Heck applies because the post-seizure proceeding

was criminal in nature, while Hoog-Watson says that it was civil.

For the purposes of a Heck-based motion for summary judgment, a

proceeding’s civil or criminal nature is a question of fact. This must be so

because Heck provides substantive boundaries for the cause of action. According

to Heck, “[t]he issue with respect to monetary damages challenging conviction

is not, it seems to us, exhaustion; but rather, the same as the issue was with

respect to injunctive relief challenging conviction in Preiser: whether the claim

is cognizable under § 1983 at all.” Heck, 512 U.S. at 483 (emphasis added); see

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id. at 489 (“We do not engraft an exhaustion requirement upon § 1983, but

rather deny the existence of a cause of action.”); Johnson v. McElveen, 101 F.3d

423, 424 (5th Cir. 1996) (“When a claim comes within the parameters of the Heck

teachings, it is not cognizable under 42 U.S.C. § 1983 . . . .”). In other words, the

existence (or not) of a prior criminal proceeding is, like many other concrete

circumstances, a fact to be proven by the party asserting the § 1983 claim.

Our precedent, although not directly on point, accords with this principle.

In Brandley v. Keeshan, 64 F.3d 196 (5th Cir. 1995), abrogated on other grounds

by Wallace v. Kato, 549 U.S. 384 (2007), the court did not assign the burden of

proving the existence of Heck-type criminal proceedings, but it did assign the

burden of proving the termination of those proceedings. See id. at 199. After

Brandley cited Heck for the proposition that “[t]he underlying criminal

proceeding must terminate in the plaintiff’s favor before a malicious prosecution

claim accrues,” the court asserted that “[the plaintiff] has the burden of

establishing that the capital murder prosecution has terminated.” Id. Brandley

held that “[w]hether this proceeding has terminated in [the plaintiff’s] favor is

a factual question that must be answered in the first instance by the district

court.” Id. (emphasis added); see also Krueger v. Reimer, 66 F.3d 75, 76 (5th Cir.

1995) (“To the extent that [the plaintiff’s] claims, if successful, would necessarily

imply that his state criminal conviction is invalid, they are not cognizable under

section 1983 because [the plaintiff] has not proved that his conviction and

sentence for burglary have been invalidated.”). On other occasions, we have

used Heck to dispose of claims when the record contained some proof of a Heck

triggering fact (the existence of criminal proceeding), but no allegation of a Heck

saving fact (termination in the plaintiff’s favor). See, e.g., Littles v. Bd. of

Pardons & Paroles Div., 68 F.3d 122, 123 (5th Cir. 1995) (“[The plaintiff] has

questioned the validity of the confinement resulting from his parole-revocation

hearing, and he has not alleged that the Board’s decision has been reversed,

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No. 08-50077

expunged, set aside, or called into question, as Heck mandates.”); Jackson v.

Vannoy, 49 F.3d 175, 177 (5th Cir. 1995) (“[The plaintiff] does not allege that any

revocation proceeding has been reversed, expunged, set aside by a state court,

or called into question by a federal court's issuance of a writ of habeas corpus.”).

These cases are consistent with the principle that, had a plaintiff alleged such

a fact and accompanied it with sufficient evidence, summary judgment would not

be warranted.

When this question—the existence of a prior criminal proceeding—is

viewed as a question of fact to be proven by a plaintiff, the Circuit’s Heck

decisions fit comfortably within typical summary judgment practice. Jackson

represents the easiest case: the plaintiff pleads herself out of court by alleging

facts that fall directly within Heck’s bar. See 49 F.3d at 177. Brandley

represents a more developed case: the plaintiff’s pleadings do not include a Heck

trigger but a defendant’s motion for summary judgment does, and the plaintiff

is forced to muster proof of Heck’s favorable termination requirement to avoid

dismissal. See 64 F.3d 196. Hoog-Watson’s case is between the two: The

plaintiff pleads an otherwise valid § 1983 claim that may or may not implicate

Heck’s factual triggers; the defendant moves for summary judgment and points

to evidence of the Heck trigger. If the plaintiff does nothing, the defendant may

be entitled to summary judgment. But if the plaintiff introduces evidence

sufficient to convince a reasonable jury that the prior proceeding was civil, the

plaintiff survives summary judgment. Thus, we evaluate the defendants’ motion

for summary judgment by determining whether Hoog-Watson’s evidence created

a genuine question of fact with respect to the animal cruelty proceeding’s

criminal or civil nature.

Our review of the summary judgment evidence indicates that it did. In the

motion for summary judgment, the defendants asserted that after the seizure,

“County Attorney Murray-Kolb subsequently filed animal cruelty charges

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No. 08-50077

against Plaintiff,” and that before proceedings began, Hoog-Watson entered a

plea agreement which provided that “the animal-cruelty charges would be

dismissed.” According to Murray-Kolb’s affidavit, the proceeding took place

before “Justice of the Peace Larry Morawietz” and “regard[ed] the animal cruelty

charge that had been filed by my [Murray-Kolb’s] office.” The affidavit concludes

by asserting that “I consequently dropped the criminal charges against her

[Hoog-Watson].” An affidavit from the administrative assistant to Justice of the

Peace Morawietz characterized the proceeding as “the criminal case filed on

August 4, 2005 against Suzanne Hoog-Watson,” and asserts that Hoog-Watson

“was charged with the offense of ‘Cruelty to Animals.’” Attached to the affidavit

was a computer record of the proceeding that listed the offense as “CRUELTY

TO ANIMALS,” and lists the “Case Type” as “CR (CRIMINAL, CLASS C).”

Standing alone, this evidence might have justified summary judgment for the

defendants. But, of course, it is not alone.

Hoog-Watson’s response includes evidence of several varieties.

Hoog-Watson accepts the fact that the proceeding took place before a Justice of

the Peace, and asserts that this fact militates in favor of the civil

characterization because criminal animal cruelty proceedings were outside of the

Justice Court’s jurisdiction. We agree. In 2005,3 a violation of Texas Penal Code

Section 42.09 constituted a criminal offense punishable as a “Class A

misdemeanor,” “state jail felony,” or “felony of the third degree,” Tex. Penal

Code § 42.09(d), (i) (Vernon’s 1977 & Supp. 2004–05), thereby falling outside of

the Justice Court’s jurisdiction, which extended only to criminal cases

“punishable by fine only” or punishable by fine and “a sanction not consisting of

confinement or imprisonment,” Code Crim. Proc. art. 411(a) (Vernon’s 2003 &

Supp. 2005). In contrast, Texas Health and Safety Code Section 821.022

3

We refer to Texas law as it stood at the time of this proceeding.

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No. 08-50077

outlines civil procedures that may take place before a Justice of the Peace.

Under the statute, animal control officers may obtain a seizure warrant from “a

justice court” before there takes place “a hearing in the appropriate justice court

or municipal court to determine whether the animal has been cruelly treated.”

Tex. Health & Safety Code § 821.022(a)–(b) (Vernon’s 2003 & Supp. 2005).

While the order memorializing the plea agreement does not make specific

references to the statute in question, it does note that “the Court held a hearing

to determine if any said animals seized with said warrant should be returned,”

terms that track the civil statute.4 Thus, we take the fact that the proceeding

came before a Justice of the Peace and the fact that it followed the civil statute’s

procedures as evidence of the proceeding’s civil nature. Finally, Hoog-Watson

points to the affidavit of Missy Martinez, an animal control officer who swore

that “I decided not to file any charges against Ms. Watson.” Faced with this

record, we conclude that Hoog-Watson presented enough evidence to raise a

genuine question of fact as to whether the requisite prior criminal proceeding

took place, thereby precluding summary judgment.5

B

In her second issue, Hoog-Watson argues that the district court erred

when it concluded that Murray-Kolb’s absolute prosecutorial immunity barred

the claims arising from the August 4, 2005 seizure. In the district court,

Murray-Kolb argued that “[Hoog-Watson’s] factual allegations include[d] actions

4

In addition, Hoog-Watson’s evidence includes an “Offense Information” sheet—a

county computer record of the proceeding—that shows “Violation: 821.022,” another reference

to the civil statute.

5

Because of our conclusion, we need not address the question of whether, if the

proceeding were criminal, Hoog-Watson benefitted from the requisite favorable termination.

See Ballard, 444 F.3d at 397 (“If a judgment in the plaintiff’s favor would necessarily imply

that his conviction is invalid, then the § 1983 action is not cognizable unless the conviction

were reversed on direct appeal, expunged, declared invalid or otherwise called into question

in a habeas proceeding.”).

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clearly within the scope of County Attorney Murray-Kolb’s prosecutorial duties

as an advocate for the State;” Hoog-Watson argued that Murray-Kolb acted

outside of her role as legal advocate when she participated in the seizure by

entering Hoog-Watson’s home, assessing the conditions of the home, and

recommending to the other participants that the animals be seized; and both

parties introduced evidence in support of their respective versions of the events.6

We review the district court’s decision to grant summary judgment in favor of

Murray-Kolb de novo. See, e.g., Collier v. Montgomery, 569 F.3d 214, 217 (5th

Cir. 2009).

Our first task is to define the conduct at issue by examining the evidence

in the light most favorable to Hoog-Watson. See Hart, 127 F.3d at 435. Four

people met outside of Hoog-Watson’s property on the day of the

seizure: Murray-Kolb, Martinez, Allenger, and Moczygemba. According to

Murray-Kolb’s affidavit, Murray-Kolb performed three limited functions on the

6

The district court placed the burden of proving that Murray-Kolb was performing

prosecutorial functions on Murray-Kolb. For summary judgment purposes, Buckley v.

Fitzsimmons, 509 U.S. 259 (1993), and Hart v. O’Brien, 127 F.3d 424 (5th Cir. 1997), abrogated

on other grounds by Kalina v. Fletcher, 522 U.S. 118 (1997), hold that the defendant who

pleads the affirmative defense of absolute prosecutorial immunity bears the burden of proving

that the conduct at issue served a prosecutorial function. Buckley, 509 U.S. at 274 (“The

question, then, is whether the prosecutors have carried their burden of establishing that they

were functioning as ‘advocates’ . . . .”); Hart, 127 F.3d at 439 (“A prosecutor has the burden of

establishing that he was an “advocate” for each function at issue.” (citing Burns v. Reed, 500

U.S. 478, 486 (1991), and Buckley, 509 U.S. at 274)); see also Harlow v. Fitzgerald, 457 U.S.

800, 812 (1982) (“Butz also identifies the location of the burden of proof. The burden of

justifying absolute immunity rests on the official asserting the claim.”). In contrast, more

recent Fifth Circuit decisions hold that after the defendant pleads the defense of prosecutorial

immunity, the plaintiff bears the burden of introducing evidence sufficient to convince a

reasonable factfinder that the defendant acted outside the scope of the immunity. Cousin v.

Small, 325 F.3d 627, 632–33 (5th Cir. 2003); Beck v. Tex. State Bd. of Dental Exam’rs, 204 F.3d

629, 633–64 (5th Cir. 2000). But because Hart came before Cousin and Beck, Hart controls.

See Rios v. City of Del Rio, Tex., 444 F.3d 417, 425 n.8 (5th Cir. 2006) (“The rule in this circuit

is that where two previous holdings or lines of precedent conflict the earlier opinion controls

and is the binding precedent in this circuit (absent an intervening holding to the contrary by

the Supreme Court or this court en banc).”). Thus, the district court distributed the burdens

correctly.

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No. 08-50077

day of the seizure: she went to the address and “determined that the animals

were in imminent danger,” she “decided that the officers would obtain a seizure

warrant,” and she “felt it was necessary to begin removing the animals

immediately.” Murray-Kolb’s affidavit then says that she “left the property”

after the seizure coordination began, and “had no further involvement with the

removal of animals.”7

Meanwhile, Hoog-Watson’s evidence suggested a more involved role. One

Martinez affidavit used the term “I” to refer to Martinez alone, and the term

“we” to refer to the group of four as a whole. According to that affidavit, “we

could hear[] numerous dogs barking and whining,” and after Martinez entered

the home alone to observe the conditions inside, “we decided to seek a seizure

warrant, and “[w]e decided to seize the animals.” Next, the affidavit asserts that

“we then proceeded to coordinate the seizure,” and that after Martinez enlisted

the help of other animal control officers, “we removed all but two or three of Ms.

Hoog-Watson’s animals” and “[w]e also seized several fans and animal crates.”

A second Martinez affidavit uses “I” and “we” similarly, and indicates that

Murray-Kolb did not join the initial walk-through, but that “we all talked about

what needed to be done,” and that “we took all the animals.” Meanwhile, a post-

incident report from Moczygemba referred to the group of four as “we,” stated

that “we went into the garage,” and stated that “[w]e then entered the residence”

before seizing the animals. Faced with this evidence, a reasonable finder of fact

could conclude that Murray-Kolb entered and inspected Hoog-Watson’s property,

participated in the decision to execute the seizure by rendering legal advice,

planned the conduct of the seizure, and participated in the physical act of

removing animals.

7

In his affidavits, Allenger named Murray-Kolb as a person who gave aid to one of the

animals on the property during the pre-seizure search, but stated that she did not enter the

house thereafter.

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Our second task is to determine whether such conduct falls within the

scope of Murray-Kolb’s immunity. To determine the scope of a prosecutor’s

absolute immunity from § 1983 liability, we ignore formal labels of identity and

ask (1) whether, at the time of § 1983 ’s enactment, the practical function of the

conduct at issue merited absolute immunity, and (2) whether, at present,

absolute immunity for the conduct at issue is necessary to advance the policy

interests that justified the common law immunity. Kalina v. Fletcher, 522 U.S.

118, 123 (1997); Buckley, 509 U.S. at 267–71; Burns, 500 U.S. at 484–96; Cousin,

325 F.3d at 631–32. Under these principles, prosecutorial immunity extends to

conduct that is “intimately associated with the judicial phase of the criminal

process,” Burns, 500 U.S. at 486 (citations omitted) (quoting Imbler v. Pachtman,

424 U.S. 409, 430 (1976)), but not to “those investigatory functions that do not

relate to an advocate’s preparation for the initiation of a prosecution or for

judicial proceedings,” Buckley, 509 U.S. at 273. In other words, prosecutorial

immunity protects “the advocate’s role in evaluating evidence and interviewing

witnesses as he prepares for trial,” but not “the detective’s role in searching for

the clues and corroboration that might give him probable cause to recommend

that a suspect be arrested.” Id. at 273; see Burge v. Parish of St. Tammany, 187

F.3d 452, 478 (5th Cir. 1999) (“Because [the official’s] function was to obtain

evidence prior to indictment, his role was as an investigator, and not a

prosecutor, so that he is not entitled to absolute immunity.”); Hart, 127 F.3d at

439 (5th Cir. 1997) (“[A] prosecutor does not enjoy absolute immunity for acts of

investigation or administration.”).

We conclude that prosecutorial immunity does not shield Murray-Kolb

from Hoog-Watson’s claims. Burns holds that prosecutorial immunity does not

extend to “the prosecutorial function of giving legal advice to the police” because

such an extension finds insufficient support in common law immunities, and

because the existence of such an immunity is not necessary to protect the

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integrity of the judicial process. 500 U.S. at 494–95; accord Buckley, 509 U.S.

at 270–71; see Hughes v. Tarrant County Tex., 948 F.2d 918, 922–23 (5th Cir.

1991) (“[T]he district attorney and his assistant are not entitled to absolute

immunity from suit arising from their giving legal advice to the Commissioners

Court.”). While Buckley said that a prosecutor’s absolute immunity continues

to cover “the professional evaluation of the evidence assembled by the police,”

509 U.S. at 273, this is not that case because Murray-Kolb evaluated the

conditions at Hoog-Watson’s property as part of the effort to assemble the

evidence. “When a prosecutor performs the investigative functions normally

performed by a detective or police officer, it is ‘neither appropriate nor justifiable

that, for the same act, immunity should protect the one and not the other.’” Id.

(quoting Hampton v. Chicago, 484 F.2d 602, 602 (7th Cir. 1973)). In short,

Murray-Kolb “participated in the search and seizure at the peril of receiving only

qualified immunity.” Hart, 127 F.3d at 440–41. Thus, the district court erred

when it concluded that Murray-Kolb’s absolute prosecutorial immunity shielded

her from all of Hoog-Watson’s claims.

C

Finally, we address the question of the defendants’ entitlement to qualified

immunity. In the district court, the defendants’ motion for summary judgment

included a qualified immunity argument to which Hoog-Watson responded, but

the district court did not reach the argument because of its resolution of the

Heck and prosecutorial immunity issues. On appeal, the defendants devote very

little attention to qualified immunity, and do not include the argument as part

of their request for relief. Accordingly, we express no opinion on the qualified

immunity argument, which the defendants remain free to reassert on remand,

see, e.g., Finkel v. Docutel/Olivetti Corp., 817 F.2d 356, 365 (5th Cir. 1987).

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III

We hold that Hoog-Watson introduced evidence sufficient to defeat both

the Heck v. Humphrey and prosecutorial immunity grounds for summary

judgment, and that the qualified immunity issue is not before us. Accordingly,

we REVERSE the judgment of the district court and REMAND the case for

further proceedings consistent with this opinion.

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