Petition for Writ of Certiorari — Cuadra v. Houston Independent School District

Suprsure Luu. U.S.

| G0

No. 10- 101291 APR 19 201

IN THE OFFICE OF THE CLERK

Supreme Court of the United States

Se

KENNETH CUADRA

HOUSTON INDEPENDENT SCHOOL DISTRICT

CAROL WICHMANN; MARMION DAMBRINO;

BILLY ALDRICH; BETHT BONNETTE;

MELBA MARTIN; ANNE PATTERSON,

Respondent

On PETITION FOR A WRIT OF CERTIORARI TO THE

UNItTED STATES Court OF APPEALS FOR THE FIFTH Circuit

PETITION FOR A WRIT OF CERTIORARI

LAURENCE W. Warts

Counsel of Record

Watts & ASSOCIATES

9002 Sienna Parkway

P.O. Box 2214

Missouri City, TX 77459

(281) 431-1500

wattstrial@pmail.con

285024 ce

IUESTIONS PRESENTI

\ A i> . ° oY : j , a. t = i

Whether Petitioner asserted a clalm [or malic1o

rosecution grounded in a specific federal right

uaranteed by the Constitution of the United Stat

Whether Petitioner raised a ge

ict on elements of the Te»

| ’

TABLE OF APPENDICES

L\PPENDIX A OPINION OF THI

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT, FILED

NOVEMBER 17, 2010

APPENDIX B OPINION AND ORDER

OF THE UNITED STATES DISTRICT

COURT, SOUTHERN DISTRICT

OF TEXAS, HOUSTON DIVISION

DATED SEPTEMBER 11, 2009 .

-ENDIX C REPORT AND

RECOMMENDATION OF THE UNITED

STATES DISTRICT COURT, SOUTHERN

DISTRICT OF TEXAS, HOUSTON DIVISION

FILED AUGUST 17, 2009. .

APPENDIX D— ORDER DENYING PETITION

FOR REHEARING OF THE UNITED

STATES COURT OF APPEALS FOR THE

FIFTH CIRCUIT, FILED JANUARY 19, 201]

TABLE OF CITED AUTHORITIES

Sanders v

950 F.2

fexas Beef Cattle Co. v. Gree

921 S.W.2d 208 (Tex. 1996

STATUES

OPINIONS BELOW

The opinion of the United States Court of Appeals

for the Fifth Cireuit filed November 17, 2010 is set forth

as Appendix A. The unpublished opinion of the United

States District Court for the Southern District of Texas,

Houston Division, dated September 11, 2009 is set forth

as Appendix B.

STATEMENT OF JURISDICTION

The United States Court of Appeals for the Fifth

Circuit denied a timely filed Petition for Rehearing En

Banc on January 19, 2011. (App. D.) The Supreme Court

of the United States has jurisdiction pursuant to Title 28

U.S.C., section 1254 (1).

STATEMENT OF THE CASE

This is a Petition for Certiorari from the decision of

the United States Court of Appeals for the Fifth Circuit

affirming the trial court’s order granting Respondents’

Motion for Summary Judgment, Fed. R. Civ. P. 56.

Petitioner, Kenneth Cuadra (“Petitioner” or “Cuadra”),

alleges a Title 42 USC Section 1983 action against the

Respondents in this matter for his seizure by arrest and

indictment in 2005 and re-indictment and re-arrest in 2006,

after he and a co-worker, Kathleen Henry-Love (“Henry”),

at Respondent Houston Independent School District’s

(“HISD”) Sharpstown High School (“SHS”) appeared

in investigatory television interviews in February 2003

regarding claims that HISD administrators had falsely

reported student dropout numbers at SHS to the Texas

Edueation Agency (“TEA”) in the annual reporting of

student data for the re-enrollment of 2001-2002 students.

The indictment against Petitioner was dismissed by

the Harris County District Attorney on November 1,

2006. Petitioner filed this suit against Respondents,

Dave Vollmer, and Rusty Hardin and Associates, P.C.

(“Hardin”), on October 7, 2007. Petitioner voluntarily

dismissed his action against Vollmer. After responses

to Petitioner’s written discovery were made by Hardin,

and the depositions of Rusty Hardin and Andrew

Drumheller (a Hardin shareholder) had been taken,

Petitioner learned that HISD had not provided a certain

document (denominated the “Smoking Gun’) to Hardin,

and Petitioner dismissed his claims against Hardin.

Respondents, having filed motions to dismiss which had

been denied, jointly filed a Motion for Summary Judgment.

The District Court referred the matter to United States

Magistrate Judge John Froeschner, who recommended

that Respondents’ Motion for Summary Judgment

be granted. (App. C.) The District Judge adopted the

magistrate’s recommendation and entered judgment

against Petitioner on September 11, 2009 (App. B), from

which an appeal was taken to the United States Court of

Appeals. The Court of Appeals affirmed the trial court on

November 17, 2010. (App. A.) Petitioner then timely filed a

Petition for Rehearing En Banc on January 4, 2011, which

was denied on January 19, 2011. (App. D.) Consequently,

Petitioner files this Petition for Certiorari.

STATEMENT OF FACTS

As a member of the Fifth Circuit’s panel commented

during recorded argument, “If [Cuadra}’s right about what

[ Respondents] did, it is not a pretty sight.” Unfortunately,

what Cuadra has said is true.

Contrary to suggestions by the Fifth Circuit, this is

not a case about nor has Cuadra asserted “a free standing

Section 1983 malicious prosecution claim” (App. A, pg.

4a). While it was observed that the manufacturing of

false evidence and withholding “exculpatory evidence”

to influence a criminal prosecution are merely part of “a

free standing malicious prosecution claim” or common law

tort, Cuadra contends that in this case where the District

Attorney dismissed an indictment with an accompanying

Press Statement, after receiving exculpatory evidence

from Cuadra’s defense lawyer, which Respondents

withheld, implicates a federal right.

This is a case where an innocent person was indicted,

not merely in the absence of probable cause, but because

evidence was fabricated to inculpate him, and exculpatory

evidence was kept from the District Attorney and two

grand juries, which fabrication and deprivation influenced

and/or tainted the process to produce two indictments of

Petitioner Cuadra. This is also a case about the retaliation

against Cuadra with a tainted criminal prosecution

because he went to the media and aided in the revelation

of the false reporting of dropouts in HISD. Neither of

those claims were time-barred. The facts span four years

Cuadra served as a network specialist at SHS,

immediately supervised by SHS Business Manager

Col. Robert Kimball, USA (Ret’d), Ed.D. (“Kimball”),

until February 19, 2003, when he was transferred

to HISD’s West District Office by Respondent West

District Superintendent Anne Patterson (“Patterson”)

and Respondent SHS Principal Carol Wichmann

(“Wichmann”), and targeted, by the decision of both, in

an investigation by Respondent Billy Aldrich (“Aldrich”).

Before his sudden transfer, Cuadra played a role in SHS’

required annual reporting of student dropout data to

HISD’s Federal and State Compliance office (“FSC”) and

the TEA.

The investigation and Cuadra’s transfer were

triggered by a media investigation, conducted by KHOU

Channel 11, a Houston television station and CBS affiliate

(“Channel 11”)

On February 6, 2003, Channel 11 commenced a

series of reports (at least ten), spanning five months,

and focusing on SHS’ and HISD’s official reports to

TEA underreporting SHS’ student dropouts. The series

began with an on-camera interview on February 6, 2003

by investigative reporter Anna Werner with Wichmann,

observed by Patterson. Werner’s interview with

Wichmann was broadcast in segments on February 10, 11,

and 13, 2003. It was described by Patterson as “awful.”

On February 7, 20038, the day after Werner’s interview

ff Wichmann, Patterson wrote the Director of HISD’s

1. Citations to the Clerk’s Record prepared by the District

Court and provided to the Fifth Circuit, and to deposition

testimony, have not been included, but will be furnished on request

or in response to objection.

Department of Professional Standards (“DPS”) and asked

that an investigation be initiated, focused on Kimball,

Cuadra, and Henry (Kimball’s clerk). According to

Wichmann, both she and Patterson decided to initiate

the investigation, and Patterson wrote the February 7,

2003 email to DPS. In her email, Patterson asked that

DPS assign “Mike M.” as the investigator to “intimidate”

Kimball and cause Cuadra and Henry to “fold.” “Mike

M.” was unavailable, and Aldrich, who was “just as good

[as ‘Mike M.’},” was assigned. Patterson identified the

purpose of the investigation as discovering who leaked

to Werner a document listing thirty (30) dropouts, when

Wichmann, in reporting to FSC and TEA, had reported

on December 6, 2002 and certified by her signature on

January 27, 2003 that SHS had zero (0) dropouts. As a

result of Channel 11’s revelations (including the airing

of an interview with Cuadra on February 26, 2003)

exposing SHS’ dropout fraud, the TEA embarked on an

investigation of HISD in Spring of 2003; issued a report

condemning HISD’s false reporting of student dropouts;

lowered State accountability ratings of various HISD

schools, specifically lowering SHS to “Unacceptable”;

there was negative national and local media directed at

HISD; and caused loss or risk of loss of financial benefits

from the “Campus Incentive Pay Program.”

In suggesting to DPS motives for leaking information

by Cuadra, Henry, and Kimball, Patterson falsely

portrayed Cuadra and Henry as being on the brink

of imminent termination (suggesting that they were

disgruntled employees), and additionally identified

Cuadra as having viewed Carlton Tucker, a former

administrator adversary of Wichmann’s, as a “father.”

Patterson described Kimball as a person who previously

had reported claimed misdeeds of other administrator(s)

Patterson also alerted the DPS director to the potential

for a “whistle blower” claim.

Wichmann and Respondent Associate Principal

Marmion Dambrino (“Dambrino’”) had decided to transfer

Kimball and Cuadra from SHS at least as early as

February 15, 2008, when Wichmann and Dambrino told

SHS Assistant Principal Andrew Monzon (“Monzon’”’) that

both were to be transferred or reassigned away from SHS.

A pretextual opportunity to transfer Cuadra wa:

found on February 18, 2003. Wichmann received an open

record request from Channel 11 for all emails related to the

dropout issue. Wichmann met with Dambrino, Respondent

Principal Intern Merrie Beth Bonnette (“Bonnette”), and

Assistant Principal Jane Lozano (“Lozano”) and conducted

an after-hours “search” of Cuadra’s office. In the “search,”

Lozano found a file labeled “Dropouts” in Cuadra’s desk.

One of the runs was from October 22, 2002, 8:07 p.m.,

listing 30 students’ names, with 29 marks on the right

side of the column and 10 on the left, and the word “Done”

written in brown marker, along with three numbers (to

wit: 73, 74, and 21). Wichmann telephoned Patterson and

reported Lozano’s find. The following day, February 19,

2003, Aldrich came unannounced to SHS to surprise

Cuadra, and interrogated him. Aldrich interviewed

Cuadra on three occasions, at least two of which Aldrich

2. PEIMS was the TEA’s database into which student data

was uploaded from the local HISD SASI program by Cuadra

Cuadra would accomplish the uploading function at an appropriate

and agreed time by locking out all other accessors at SHS and

upload to TEA via a program called “Edit+ | Plus].” He would then

usually make print-outs (“runs”) of the new version of the data

tape recorded. The Fifth Circuit stated, “During the

course of his investigation, Aldrich spoke to HISD and

SHS employees and interviewed Cuadra twice [sic]. In

both interviews with Aldrich, Cuadra did not disclose that

anyone asked him to change the dropout data.” (App. A,

pg. 4a.) Wichmann delivered a prepared letter to Cuadra

which stated in part, “I have been informed that you are

accused of altering student records without authorization.

In light of the serious nature of the allegations, I believe

it is in your best interest and that of the school district

that you be relieved of your duties . . . until a thorough

investigation can be completed and a decision reached as

to how the matter will be resolved. .. . [Signed] Dr. Carol

Wichmann On behalf of the West District Office and Anns

Patterson, District Superintendent.”

On February 20, 2003, Kimball met with Aldrich and

gave him a memo and supporting exhibits. Amongst the

documents provided to Aldrich by Kimball was a copy of

the “Smoking Gun.”* Kimball’s meme to Aldrich stated

[In early [sic] October, Kenneth Cuadra was off

campus for training. He returned one evening

after the training session and briefly informed

me that he was called by Ms. Dambrino and told

he had to clean up some reports because Dr

Wichmann had to meet with the Superintendent

the next day. I advised Mr. Cuadra not to falsify

3. The “Smoking Gun” is a portrait-printed dropout roste1

of 30 students’ names alongside six (6) columns of data containing

Respondent Martin’s and Respondent Dambrino’s handwriting. It

has alternatively been referred to throughout this lawsuit as, “the

Smoking Gun,” “Melba’s List,” “SRS 1028,” and/or some variatio.

of the phrase, “the portrait print dropout roster.”

iny data because it would constitute fraud and

that if he was being told to do so and did it he

would be just as guilty as Ms. Dambrino and Dr

Wichmann, if they implied our suggested that

he do it. The next morning Mr. Cuadra told m¢e

that he had put everything back the way it wa

On February 26, 2003, Channel 11 aired Werner

nterview of Cuadra. In the broadcast portions of that

interview, Cuadra related how he had been asked to

delete names from the dropout list, deleted the names

and then restored them. Cuadra also told Werner how

he had been instructed to sign off as responsible for the

dropout reporting when he was not the person responsible

ind had refused.‘

Un ix nruary fo¥ 2005, Kimball w: ripped Oi Nn

and reassigned to Patterson’s W istrict Offic

Both Kimball and Cuadra filed administrative

rievances because of their transfers. Kimball’s eventually

dtoa “whistleblower” claim against HISD whi

1. After Cuadra refused to sign as responsible for the dropo

eport on January 27, 2003, Wichmann’s secretary told Assistant

Principal Monzon that Wichmann wanted him to sign as beings

the person responsible instead of Martin. Monzon complied. As z

result of Channel 11’s broadcasts of Wichmann’s and SHS’ falsi

certification of zero dropouts to the TEA on January 27, 2003

(KA investigated HISD’s false dropout reporting. For having

complied with Wichmann’s instruction to sign as being the person

responsible for the zero dropout report of 2002-2003, Monzon wa

administratively disciplined. Monzon wrote about being duped b

Wichmann into accepting responsibility for the dropout report

publi hed lette LA Liv editor | ay ene) | { nronie

aqal

>100,000.00 and reinstating him to the position of Assista

!

rincipal at another

school. Cuadra’s grievance wv

eassigned by Superintendent Stripling from Patte)

» Executive Deputy Superintendent Saavedra. Cuadr

vas reassigned to “Transportation,” lost his grievance

\ugust 29, 2003, and was eventually indicted for a f

alteration of a governmental record

lefraud,” letob

yay

sé > witar rr » LEnaurn

used “a computer program known

laintain official reeords of student data, 1

tudent drop-out information.” (App. A, pg. 2a.)

chools, including SHS, make official student data repot

iantifying each school’

~< dropouts for HISD’s ,

fil “ee DN ordiy ;

' . .

triet_wide « nd

ACY Ud

i ne ates during the ZUU0Z-ZUU38

ot include Octobe)

- 22-23, 2002 and neither were k

+ . y . : ‘ “1h ~~ " 4 2 . fT « , +1, mL

lates for the final submission of dropout data to the TI

the key dates were the first submission of data in the fir

eek of December 2002, final submission on Decembs

§, 2002, and the principal’s certification on Januai

2003. FSC’s Antonia Druary (“Druary”) reporté

Aldrich when he interviewed her in his investigati

hat October 22-23, 2002 were not necessarily key dat

Yet, throughout the construction of their charges again

uadra, Respondents falsely attributed significance

October 22 and 23, 2002 as if those two dates represent:

HISD’s official report of dropouts to TEA. During t

002-2003 school year, the year 1

A

Wichmann an

| cp*> ODE

INP? 5 ‘}

October 22, 2002. Assista

Dambrino] and | Wiehmann] told him ti

n to fifteen names from the

yrandomly de]

drop-out list

nticipation of a meeting with Ge cle

Caye Stripling Dambrino

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rs)

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FAT CII

ff-campus In a training course wh

mm SHS at approximately 4:00-4:30 |

D1

he page and Kimball answered the phot

poke with Dambrino and Wichmann

at Bonnette was there and Wichmar

report in a fold

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1)? me

a cain it

Ach

semi. ;

Wichmann], for a meeting

id to attend the ne

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Martin] had not done her job that y toe

at they [Wichmann, Dambri

d called [Martin] |

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CPLA itd

ind Dambrino gave Cuadra was from Antonia Dru

(with FSC); Wichmann didn’t know what Cuadra would |

vorking on; Wichmann and Dambrino both put the folde

1 Cuadra’s desk for him to come back to in his offic

she did not know what was in the folder; she nev

the folder; and she never looked in the folde Y’.

euit chose to believe that Cuadra was not

authorized by Wichmann or Dambrino to mak

ee to dropout data on October 22, 2002. Accordir

» Wichmann and Dambrino, of the four (Wichmanr

Daailetae Bonnette, and Cuadra), only Cuadra loo

n the folder and knew what changes he

hich documents -- for Wichmann’s meeting 1

: r W3

en

anges to the student dropout data

instructed | »y Dambrino and Wichmann, an

torations on heichias 23, 2002,in HISD’s AF! scres

t is celal inferable that Cuadra first Regie changin

— datainthe AFI screen with Aldrich o »br

2003. Aldrich knew of the significance of

cbr uary 19, 2003, because Aldrich notes that he ret

1is office and met with “Dave Vollmer/Te: ‘hnolog”

deur the AFI data screens ... and was not able

dentify anyone who might have changed the data.” |]

Aldrich not known of - » AF'l’s significance in

senna nips dni 1 LAF]

ms

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rk

A}

‘ohr

cnange

mM — pondents c

art youts to 30 non-dro

a a .

lade

y Martin, “trump” or override

ploaded to the PEIMS databa

false, final et was

} yarai

ie a

NOT to enter the militar,

; 7

ictover

private

Tt

changes on the night of October 22

idence that Aguirre’s leave

aver (dropout) code before a

versed the instructed changes

ntered on Aguirre’s MIS sc

Martin, it didn’t alter the

vidence remains. Because of

£ T ry

e

vhen the information changing the

lropouts to non-dropouts was input into

MIS, otherwise AF'l’s “dropout” status would have

flected after October 24, 2002, when the dropout va

were uploaded to TEA’s PEIMS database. MIS “tri

FI. and it was the MIS

ZS

0 other students, which were

hanging the status of the

after : * re

>

yllmer ver

C2 ado¢

is aropouts

rom Novemb

fallax

Vichmann

inet Nolte, Manager, HISD’s F‘

» Wichmann on December 18

zero dropout report

ys tiot VA ¢ ) + a0 ¢ & (\t ,

Yruary, YVest Distt ICL Fawr 11ice}

SHS’ report of a zero dropout rate in Decemb:

2002 raised flags of unreasonableness, and tha

ther schools under Anne Patterson’s supervisi

vhich had reported zero dropout had raised

“flag

ruary pointed out to. )and Hal |

SHS had been “alerted ... about making su

their zero dropouts had documentation befo1

heir resubmission to [S]tate [Clompliance

Jantuary 2003]. They had plenty of time to ge

heir information correct.” (Emphasis addet

ruary emailed Martin, copying Damb:

nd Monzon, on December 5, 2002 regardi1

Presumed Under-Reported Students,” student

vhose leaver or dropout status had not -

een determined, and asked that the roster

resumed under-reported stud

fore December 10, 2002

that she had been told as early as late in the

Spring semester of 2001-2002, there would be a

zero dropout rate in the Fall Collection of the

2002-2003 school year. Lozano also said that she

knew from the SASI data that a former student

of hers was a dropout (Juana Juarez) because

she had withdrawn from school to care for her

baby and was a dropout, and that she not only

told Dambrino and Wichmann, she had shown

them the SASI screen entry made by her in the

2001-2002 school year.

On May 15, 2003, Aldri

Mr. Cuadra then questioned... if I examined

Melba Martin’s data... I replied that I did

not want to try the case at this time, that

all he needed to know at this point is that

have evidence that he changed the data, and

that he is a liar. I told him that each time he

comes up with a different story, he has some

supposed evidence that will support him, but

it never materializes .... There is no evidence

to support his contention that he modified the

student records and then changed them back.

[ told him that the evidence supports that he

changed the data, and it remained changed

until the final submission in January

After Wichmann became Principal of SHS in 1999, shi

eported 0% dropouts for 1999-2000, 0.2% for 2000-2001

1d. according to Lozano, announced the rate for 2001

|

2002 was to be zero while officially predicting a dro}

rate at SHS for the 2001-2002 school year to “be at

below 1.0%.” Wichmann told Kimball, when he challenge

the accuracy of the dropout numbers in November 200%

that she had been instructed by Patterson to produc:

dropouts when she was hired

or apout January 2/, 2UU05, | Wich!

signed and submitted to the Department

State and Federal Compliance the Fall PEIM

Resubmission Approval Report. One of the dat

elements on the report that was approved by D

T

J

Wichmann was the number of dropouts. Th

number was reported as zero. In her testimon

Dr. Wichmann says that she first knew tl

Sharpstown had zero dro)

) DNNYP

about the zero dropouts being reported, the

consistently checked with [Martin], . .

ensure that the data were accurate and the

appropriate documentation was on file. Dr

Wichmann and Ms. Dambrino stated tha

Ms. Martin on numerous occasions assu!

them that everything was in orde)

uadra argues hespondents wrongfully pinns

sponsibility on him, though he 1s ennocent. Th

uncontestable evidence supports his argument, e.g

Cuadra was probably told by Dambrino and Wichmann

to make dropout data changes on October 22, 2002

(only his deposition testimony of the three--Wichmann

Dambrino, and Cuadra--is unambiguous and plausible

Cuadra’s changes were reversed by him according té

HISD’s AFI screens, Dambrino’s notes of October 24

2002, and Wichmann’s and Dambrino’s testimony abou

the dropout status of 30 on Novemeber 6, 2002; Wichman

admitted to Kimball that she had been told by Patterso

to fix the “paperwork” cause of the dropout problem a

SHS; Kimball warned Wichmann by email on Novembe

», 2002 that Melba Martin was inaccuartely reportin;

lropouts, and Martin’s handwriting, with Dambrino

;on the Smoking Gun; and Lozano informed Wichmaz

nd Dambrino of her personal knowledge that the

Wron?y

uadra nad no reason on UCctovdel

i¢chmann’s and Dambrino’s directive t

O |

to believe his obedience wa

e Fifth Circuit states, “In May 200 mba

rote a letter to Lester Blizzard (‘Blizzard’), a Harri

ounty Assistant District Attorney, and alleged tha

sHS administrators, including several of the nam

Respondents], were responsible for the false dro

ut numbers. Blizzard contacted Aldrich

requested a copy of Aldrich’s completed report,

Aldrich sent in June 2003. Aldrich’s report conclude:

that Cuadra knowingly changed student leaver cod:

vithout authorization. Ultimately, Blizzard d

rye eure ( dra Ay

Aldrich was an ex-Houston Police Officer who Blizzard

and his successor Buess both knew. Blizzard conditioned

his request for Aldrich’s complete Report on whether

Aldrich found “sufficient evidence of criminal wrongdoing”

in his investigation incriminating Cuadra. In that event,

Aldrich was to forward a copy of his Report to Blizzard “for

further prosecution.” Therefore, Aldrich’s transmission of

the Report to Blizzard was not simply Aldrich’s cooperation

with a request by Blizzard for information, but a statement

by Aldrich that he had satisfied Blizzard’s condition and

found evidence which incriminated Cuadra. HISD hired

Hardin for a “makeover” of Aldrich’s investigation an

ordered that Hardin’s effort be sent to District Attorney}

Blizzard. Hardin was provided the accumulated materia

by Aldrich--except Hardin was not told about or giver

the Smoking Gun, which supported Cuadra’s innocenc:

by demonstrating that leaver codes made in Martin’

handwriting® on the document appeared in the TEA

final dropout data for the 30 SHS students, certified by

Wichmann not to be dropouts. Hardin’s re-do of Aldrich’

investigation implausibly concluded, as had Aldrich, that

Cuadra’s change of data was not authorized by Wichman1

or Dambrino, and that Cuadra’s alterations of data o1

October 22, 2002 had caused the submission of false dat:

to the TEA. After receiving both Aldrich’s and Hardin’

report, Blizzard communicated to Hardin’s Drumhelle)

that he was not going to initiate a prosecution agai?

AMaAUSLEC I

6. Martin’s handwriting

orker, Henry. Dambrin

|

) September 200 3 |

eceeded by ADA Terese Bue (“Bur Ww!

slizzard, admittedly viewed the charge:

r which the statute of |

i

as misdemean

mitations barred prosecuti

uess, no stranger to the Bracewell & Giuliani firm (whe

r sister had practiced law ). telephoned Ra sponde

ounsel and reported that the pros ecution wv

arred. Respondents’ counsel ;

1]

upre

il time LO prosecute

‘tatute of limitation

ecution until October

ie felony was

idicated

tatute. bur acquiesced a

felony prosecution, Dut a

espondents with all relevant

th Aldrich

rif

‘Oommunicated v

fold | OZANO K

» dropout of the vear: the zero are

re ordained by Pa I

n: Wichmann and Dambrin

nnette’ presence, ordered Cuadra to return to se

| Tuesday, October 22, 2002 to make data changes in

lder” left at his desk: Tuesdays in October 2002 were d

n Cuadra attended training; there we

Opoutl for SHS on October 2A 2002.

ri -4() report

and 30 re port

t \

Wich

-rincipal Monzon to verify on January 27, 2!

hat he was responsible for dropouts when he was not, J

vhich he was reprimanded; and Respondents withhel

SHS Registrar Carraway’s Documents which

that the final changes to create the zero dropouts had

nade inthe SASI’s MIS screen, and

,

Huess obtained the first indictment against Uua

n October 7, 2005.* Cuadra was arrested and made bond

On October 11, 2005, after Cuadra was indicted, Kimbal]

obtained an interview with Buess and provided her with

documents including the Smoking Gun, whether she knev

it or not. Buess did say in her deposition that she didi

ive great weight to Kimball

in pre-trial communications petween bu

uadra’s defense attorney, Matthew Hennessy, on or about

October 26, 2006, Buess first knowingly received a

the Smoking Gun

It was clear Buess did not recall having the Smoku

run before receiving it from Hennessy on October 2!

2006. Specifically, Buess was asked in her deposition

why the Smoking Gun, received from Hennessy on

October 26, 2006, was “a surprise... if [she] had been

given a copy of that [document] by Kimball on October

11, 2005?” Buess replied, “A [by Buess] Because at that

point, | had so much paper that I wasn’t recalling that |

had that in my file. Q | by Petitioner’s attorney, Watts] You

just didn’t remember it? A [Buess] I didn’t remember it

) | Watts] And you didn’t remember it until after when

lhe initial indictment agai

ut October 22, 2002, Cuadra unlawfully and knowingly ma

i false alteration of a governmental record, namely a public s«

cord (Exhibit A) and Cuadra’s actions were done with inte

defraud and harm another. Exhibit A was the PEIMS D

| by 1? y ; )

Watt {ter the indictments were dismiss«

I don’t remember when. I just realized it wa

hox and I had had it all alanc.” (Emp

4 ?

} >

uwueSS| Wanhl

Lo

hness\

att Hen

2

OSE

a

i

y

wi

KneWU

IMac uln te

nd 228th District Court Grand Juri¢

’ectober of 2005 and May of 2006 all

i eged U!

‘uadra had tampered with the 2002 drop

report from Sharpstown High School.

seeking these indictments, this office

Ipon circumstantial evidence that h:

issembled and examined by the

rofessional Standards, as well as by

iS

r'¢

i t

3

ndependent School District

unsel Rusty Hardin & Associati

rformed an In 1

> | LITO]

; rt

Tense attorney detaliled 1

«A

nanifir Aaf, Ie AMraAIN } pn

ecifie defenses against the aececus

a

Ta)

efenses had not been provided to t]

ince

| Professio 1a] st andard

aArAIhY

{aradl |

Dist

(

tr, |

y 4 ak

yv¥nen reviewing a grant Of Summary judgment, t!

ifth Circuit does so de novo, applying the same standar:

required of the district court. Summary judgment

is improper if the pleading, discovery and disclosures

materials on file, and any affidavits, show that there is a

genuine issue of a material fact. Shields v. Twiss, 389 F.3d

142, 149 (5th Cir. 2004). The trial court, and therefore the

court of appeals, is compelled to construe all facts and

inferences in the light most favorable to the nonmoving

party when weighing a motion for summary judgment. Ths

nonmoving party must come forward with specific facts

showing that there is a genuine issue for trial. An issu

is “genuine” if the evidence is sufficient for a reasonablk

jury to return a verdict for the non-moving party. A fact

is “material” if its resolution in favor of one party might

iffect the outcome of the lawsuit under governing law

The Fifth Circuit noted, “Cuadra alleges that

Respondents] violated his Fourth Amendment rights |

intentionally withholding infermation and manipulati1

}

idence to procure the indictment.” (App. A. pg. 8a

Uadra Was SUCCESSIVELY INGIctead DY tne granada pial

e

two courts, according to the prosecutor, because th

District Attorney and the grand juries had “relied upor

‘ircumstantial evidence ... assembled and examined b

Aldrich], as well as by [Hardin], who had perform

in lepend mT ey rth] i] ' 21 t } t re Bets sf of HISD’

at CcVa ia

pecifically, fact issue S were ra ] at AVA

san intermediary, would not have sought, and the g1

urles would not have v voted for, indictment of Cuadra. -

Buess had the information provided to her by Cuadra

}

defense attorney, Hennessy, on October 26, 2006, whi

she characterized as “defenses” in her Press Statement

lhe only document provided to her by Hennessy wi

Smoking Gun. Buess did not receive the Smoking Gun

varraway'’s Documents, along with other material f.

Aldric

nt ++

DUCSS de D OS LESUTNOTLY

| 7

it lear t

naware Kimb: m wy provided her wi

Gun on October 11, 2005, and did not bec

the document’s existence amongst the boxes of paper

maintained by her in this case, until later... after Octobe

26, 2006. Buess apparently attempted to help Aldrich an

Hardin when writing her affidavit by stating that neithe

iad the Smoking Gun informati

ave it, and Hardin didn’t |

. . 1

trindad thand ,

(ie CT ft t (i¢)

‘ ‘

i

1 "OVT YT1}]

Wrongtul

eution sh

3S F.2d 1420, 1428 (oth Cir. 1988 App. A, pg. 1Ua.

court then states, “both Buess and two separate gran

juries qualified as independent intermediaries. Cuadra’

mere allegations of ‘taint, without more, are insufficient

to overcome summary judgment. Taylor [v. Gregg], 3

EF. 3d [453] at 457 [(5th Cir. 1994)] (emphasizing that th:

‘taint’ must be shown and finding no summary judgment

evidence to support assertions that an intermediary relied

n an officer’s false report).” /d. (Emphasis added.) Cuadra

alleged specific facts of “taint,” so the court misstated

Cuadra has “not raised a fact issue as to whether an)

f the [Respondents] knowingly withheld the ‘smoking

gun’ document or any other. . . exculpatory information,

thereby tainting Buess’s independent decision to see}

Cuadra’s indictments or either grand jury’s decision tf

-n the indictments.” (App. A, pg. 10a

Aldrich was given the Smoking Gun by Kimb

February 20, 2003, along with information whic!

ipported Cuadra’s innocence of having unilaterally

decided to make changes to student dropout data

October 22, 2002, i.e. without authorization or instr

Wichmann and/or Dambrit

ss or Hardin, but Hardin’s Drumhel

ee Ly

\ “t

ALLit

LOCUTILE TL! pre ULWeu ‘ ( ¢ fit L7T~ESSY. ONE SU: ‘

“These defenses had not been provided to [Aldrich], t!

staff of [Hardin], or the 338th or 228th District C

“ . T - e . = |

Lr! and Juries

Buess’ ignorance of the Smoking Gun was the basi

for Cuadra’s indictments. Specifically, Buess says she ha

boxes of paper related to this case and was surprised t

later see the Smoking Gun document in her files

Most importantly, evidence that the Smoking Gun witl

Martin’s and Dambrino’s handwriting had been knowing]

withheld from Buess is found in the conduct of Aldrich ar

Dambrino on October 26, 2006.

Buess was “blindsided” by Hennessy’s prot

VUUCLIUII

t i

1e Smoking Gun, and the part it played in decipheri

ie time line of post-October 22, 2002 event:

lhe Fifth Circuit remarks that the Smoking Gun}

lated. The Smoking Gun, though undated as to creatio

points to the date of its use in its “leaver codes,” when rea

in light of the TEA’s dropout status for the students. |

becomes very clear that the Smoking Gun was used as

form upon which Martin and Dambrino made their not«

° ]

ind the notes were to turn dropouts into non-arcvnoutl

he prooi that Aldrich and, at least, Damb)

cnowingly withheld from Buess information about tl

Smoking Gun is that on October 26, 2006, Aldrich an

Dambrino discussed Buess’ report of her receipt of th

Smoking Gun, and her questions of where it came fron

ind whose handwriting it bore. Although Dambrino h:

3 1 | } } 4

ritTen oO} rne SMOKMME na iaTrer paanel

her handwriting, Buess wasn’t told. Althoug

Dahetnn, Martin’s supervisor, obviously knew Martin's

handwriting, Buess was told it was not Martin’s

handwriting on the document. Although Henry had

identified Martin’s handwriting on the Smoking Gun t

Hennessy, Aldrich and Dambrino “wouldn’t tell.”

‘he Smoking Gun was not the only informatio1

xculpatory of Cuadra, or at least inculpatory o

Wichmann, Dambrino, Patterson, and Martin, whic!

\ldrich and Dambrino didn’t share with Buess.

Aldrich made no disclosure to Buess of the following

icts: 1) on February 20, 2008, Kimball had verified

Cuadra’s version of the events of October 22-23, 2002;

2) Dambrino recorded in her notes that there were 30

dropouts on October 24, 2002; 3) Lozano told Aldrich

that she personally knew and had reported to Wichmann

and Dambrino that a student listed as a non-dropout had

dropped out to take care of her baby and refused a GED;

and 4) the AF'I screens where Cuadra made his changes on

October 22, 2002 revealed original, pre-October 22, 2002

values even into June 2006. There were other facts not

lisclosed to Buess which Buess conceded in her depositi

uld have been significant

ie Fifth Circuit says that “Cuadra fail

ict issue on several of those elements” to the ce:

j y A

: 2 Ty?)

cult states, “Cuadra has 1 .

» | Respondents] initiated or procured |

‘act. King p) Graham. 126 S.W.3

Pg

information cannot complain if a prosecutor acts on it;

cannot be heard to contend that the prosecutor should hav

known better. Such a person has procured the resulting

prosecution, regardless of the actions of the prosecutor

and the causation element for malicious prosecution

is satisfied.” (EXmphasis added.) When Aldrich and

Dambrino, with Martin, Wichmann, Patterson, and

Bonnette, failed to disclose the Smoking Gun informatio.

or other material facts to Buess to have Cuadra indict

causation was satisfied

Certainly the other common law elements of malicis

prosecution have been satisfied. The criminal actio!

was commenced against Cuadra when Respondent

counsel guided Buess from a time-barred misdemeant

to a nearly time-barred felony in September 2005, and

Aldrich supplied documents and information to Buess t

support the rush to indict. The prosecution was initiated

or continued “by or at the insistence a ei

Texas Beef Cattle Co. v. Green, 921 S.W.2d 203, 207 (T

L

1996), or with their varying levels of aid

It is worth noting that Buess never '

read either Aldrich’s or Hardin’s reports, placed by hi

predecessor, Blizzard, in the back of his desk drawe1

Buess only indicates scant knowledge of the accusatior

against Cuadra until she made was she apparent!

believed to be a perfunctory, lawyer-to-lawyer call t

inform Respondent’s counsel, Ms. Schneider-Vogel, of

time-barred misdemeanor prosecution. That conversati:

ignited a felony prosecution. Buess asked Se hneider Vog

and Aldrich for files and documents, forced by the di

if October 22. 200

ioking Gun was not considered exculpatory. (See

i, pg. 10a.) Yet, when considering her conversations

October 26, 2006 with Aldrich, her Press Statement

November 1, 2006, and her deposition testimony, it

clear that, but for the withholding or non-disclosure of t]

smoking Gun, she would not have sought the indictment

ind, but for the production of the Smoking Gun, she wou

Novemb »- 1 Of)

4

4

t have dismissed the indictment on

fant ny? | ¢aont , ' . y

ViaALECrlal [act questions emana

fusal to produce the document, refusal to tell Bue

n October 26, 2006 of Dambrino’s handwriting on tl

locument, and falsely reporting to Buess on October 2

2006 that he had investigated or inquired to discov

_ 5 mawriting ar +} A,

was Martin’

Y) ;

iT} & y ri recy ¢

rit il ivf : LWLIOLILILY 4 t

€@ evidentl. Y i AULA D Il

several. Cuadra was instructed by Wichmann

Dambrino to make changes on October 22, 2002. He mas

the ordered changes on condition that he would revet

hem for Martin to address when available. The changs

}

nd restoration to original values performed by Cuad1

vere in the AFI screen, verifying even in 2009 the lea\

‘odes for the 30 students on the subject dropout rep

emained at pre-October 22, 2002 values. The Smoki1

run reveals that Martin’s handwriting changes the le

odes from dropouts to non-drol

| | ubmitted t my

repor |

pond

iropout leaver codes on Octot

LITVO iT} Ail VV ICI

ents of October 22, 2002, and t!

1 material quest

‘he number of di pou

ctober 24, 2002, down to zero on November 5, 2002, de

» zero on November 5, 2002. back to 30 on Novemhbe

6, 2002, down to zero on December 6, 2002-January

003. At no time in that period v Cuad |

ny SASI data editin;:

In addition to the pane! laliure LI la

ferences in favor of Cuadra, the panel apparently adde

to the state common law elements of malicious prosecutio

ind required Cuadra to create a fact issue as to wheth

iny of the Appelle tive] cht | liet

nr) {

'

ates, “I’o prevail on a malicious prosecution cl

[exas, the Fifth Circuit requires the plaintiff to she

that (1) a criminal action was commenced against him; |

the prosecution was caused by the defendant or with |

iid; (3) the action terminated in the plaintiff's favor;

the plaintiff was innocent; (5) the defendant acted with

robable cause; (6) the defendant acted with malice

) the eriminal proceeding damag ci th tT}

vv nen the panel con luded t _uaqdard

act issue as to whether any of the Appellees knowin;

ithheld the ‘smoking gun’ document or any oth

illegedly exculpatory information, thereby tainting Bue

ndependent decision to seek Cuadra’s indictment or eit!

170) '

Press Statement

roft Re ponat

\ithough tne Vall aC)

th Cir. 2004) and Murray v. Harle, 405 k

paid LO constru

516 Ale OLN |

1005), it appears lip-service only | 1

ill facts and inferences in the light most favorable to

nonmoving party when reviewing grants of motion

ummary judgment.” It does not appea)

delved through the record to set forth all of

light most favorable to [Cuadra|

0 F.2d 1152, 1159 (5th Cir. 199

stella got re

nendment CialmM based On an aril

robable cause .... [but] [t]his cireuit ha

|

» placed betore

that once ‘facts supporting an arrest

independent intermediary such a

ntermediary’s decision breaks the chain of causation

hese constitutional violations Nevertheless, the:

claims may be maintained if the plaintiff affirmativel

shows that ‘the deliberations of that intermediary we

in some way tainted by the actions of the defendar

, 9 4 ' n (T]

grand jury

APPEALS FOR THE |

NOVEMRE!I

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when the plaintiff becomes

sufficient informati

(,uadra

PENDIA 5b OPINION AND ORDER OF TI

NITED STATES DISTRICT COURT, SOUTHER

DISTRICT OF TEXAS, HOUSTON DIVISION

DATED SEPTEMBER 11, 2009

‘e

—

vm

<

Ce

-

—

~_

ti

rENDIA LrUr Un EI ALN

IMENDATION OF THE UNITED STA

RICT COURT, SOUTHERN DISTRI

EXAS, HOUSTON DIVISION

LED AUGUST 17

ley

*

+

t

_—

+——_

a

ow

a

ted

¢

tation to suppor

sr)

il

nim

OCUTTLE

|

‘

nat any

error in the report was merely a clerical

lowever, SHS’s explanation wa lled

a« 7)

Cierical Cr!

Yr)

al .

ealled into question Ww!

1onymous HISD worker came forward dispu

it the error was a clerical one and informing

nedia that the school district had already

2f\T

dy commenced

nvestigation into who was responsible for the false rep:

Numerous medi

——

lia reports followed as the investigation ir

SHS’s drop-out dat:

t Lint

lata unfolded. In addition, other repo.

merged that State investigators had found informati

gs gesting that « othe

er Houston se!

Lt arop out numb

isp reque Leé Stig

SHS'’s drop-out data through its own Departm

I stipe rion Standards. (Doc. No. 180, Ex. Y). Bil

\idrich (“Adrich”) was assigned to the investigat

)) ef it February 10, 2003 (Doc. No. 130, Ex

at 1: Doc. No. &0, ] MatW3 mme!

¢ Stl1pe T

district ccngre y the medias request for r

nder the Pul tab rmation Act (“PIA”). (Di I

0, Ex. W at prerinw ll-a). The next day,

amit istrators Wichmann, Dambrino, Bonnet

» Lozano conducted :

2d an after-hours sear

id sinicuade offices f information respo!

o the request [he search included Cuadra’ I

ielded a folder contai

ty

ANV

cA ty

s

Op ut da

rT\}

4\ iavLla I

¢

LY, ZU

in February

1ined that he

‘

a

comp!

<

dene

.—

he perceived impartiality of HISD

vestigation, Saavedra, along with HISD Gen

unsel, Kaye DeWalt (“DeWalt”), determined that

ocess would be best served by hiring outside counsel

nduct an independent investigation, assess the evide!

id offer an opinion concerning the events. HISI

law firm of Rusty Hardin and Associat

ask. Andy Ramzel and Andy Drumhe

Cys al Hardin’s firm, commenced the inves

lowing their investigation, the attorney:

!

‘ir report and conclusions (hereinafter, “Hard

port’) to Saavedra and DeWalt on August 28, 2003

ir report, the attorneys concluded, in relevant pai

iat “itihe allegation that on Tuesday, 12/22/2002 art

Wednesday, 10/23/2002, Kenneth Cuadra knowing

1anged the student leaver codes of 30 students liste

the PEIMS EDIT Uropout Report to the T

ducation Agency, and hi is not author |

'ONFIRMED.” |

lavedadra 18SSuUuea '

udent irop out matter. In his deci: ion,s lavedra de nN)

relief sought In Cuadras grievance.’ saavedra

]

commended that

;

ignificant publicity surrounding the events, HISD ma

he decision to make the Hardin report available to tl

public—a decision that prompted Cu: ore to file anothe

rrievance in which he alleged that the release of t)

Hardin report violated his privacy wight Ss and was mere

lone in an effort to retaliate against him. This grievar

is heard by Assistant Superintendent Bill Carpent

tit was ultimately denied. (Doe. No. 34 at 33, 7 D

After nis grievances and administrative appeal

nied, Cuadra was re-assigned from his tempora

: re ee in the West District administrative office

» HISD Bus Barn. Cuadra filed a grievance concerni!

this re-assignment, but he did not prevail. In August 2004

juadra resigned from his job with HISD. (D |

(, at 465:11-19 (Cuadra Depo: ition

in October 7, 2005, Tess Buess (“Bue

strict Attorney in the Public Integrity Division of th

Harris County District Attorney’s office, sought an

ybtained a criminal indictment against Cuadra for making

a false alteration to a government record-- namely, a publi

chool record. (Doc. No. 80, Ex. 24 at 19). Following h

indictment, — was arrested and released on bon

(Doe. No. 34 at | M. 6; Doe. No. 80, Ex. 24 at J

Matt Hennessy (‘ ie sia with the firm of DeGueri

Dickson & Hennessy was ultimately retained to represet

Cuadra in the criminal proceeding.® Cuadra’s attorn

iled a motion to quash and the October indictment

6 Dita tn rele ining Ma t He nn

fferent times by oo Crimi!

} ’ ; af if 1A 4 léy\é

:

hue I

ULOrT Dil

if I

iminal defense att

e and defense

neluded that the

ladra’s guilt beyond reasonable doul

ne of

| ‘

event:

ICs. made the deci:

ladra Oi

ued that

i) 150,

ame

Hx

006, to inquire ab

il the Dist

deral ¢ ur alle

fendant (Do

mplaint

oved ror sum

: ”

OC Vo)

2$())

dg¢ment on his Iirst and [ourtes

$7). These!

>

November

doy

Udy.

i

‘ ri}

C TThh

}

revealed

1OT)

a

}

ht

aD

De di prove e | hy comput é

to d}

SUU00

Hx. I’). Aldrich cal

ave diffieult.

‘ak

i

rt Dee

|

Tet

| ’

‘

|

{

rixro

resolve the issue

t 340; Blackwell

th Cir. 1994). To defeat summary judgment, t

must demonstrate that either (1) the record affirmative

stablishes that probable cause was lacking or (2) enoug

renuine, material factual

elements of probable

tablishes probable cause t

he offense charged. See ¢

43 F.3d 973, 976 (5th ¢

;

3d

7

} #

i

Sponsibilitis

tne aeterminatlo

. i. ne y

LO Dpelleve

nmnroanan

t | Pca

q

cA

tablishes tha

"tf ’ > ae

} i |

| AQOry / A ~. + se 7 }

nello, 357 U.S. at 487, 78S. Ct. 1245). Never ‘

has been acknowledged that “simply obtaining a

indictment is not enough to insulate state actors from al

iction for malicious prosecution under § 1983.” Hand

rary, 838 F.2d 1420, 1426 (5th Cir. 1988). ‘ ‘The e probabl

-ause for the indictment must not be tainted by malicious

actions” . ghana officials. Cornett v. Longois, 871

F.Supp. 918, 922 (E.D.Tex.1994) (citing Hand, 838 F.2

t 1426). s ‘the absence of evidence that material facts

vere withheld or that the deliberations of the grand jury

r other intermediary were otherwise tainted by thi

ictions of the defendant, however, no liability for maliciou

prosecution can attach. See Taylor v. Gregg, 36 F.3d 45:

57 (5th Cir. 1994): Hand, 838 F.2d at 1428

n the present Case, the evidence reflects that Aldri

ent his report to the District Attorney’s office only after

Blizzard, the lead prosecutor for the Public Integrity

Division : the District Attorney’s office, requested

(Doc. No. 80, Ex. 26 at 1 3; Doc. No. 130, Ex. V

Pherenfter Buess, who replaced Blizzard as the lead

prosecutor in the Public Integrity Division, reviewed the

file and talked to potential witnesses before exercising

her discretion in deciding to present the information to

rrand jury. The evidence clearly reflects that the decisi:

to seek the indictment was made by Buess (Doc. No

130, Ex. E at 183:6-10), without influence by any of the

Defendants (Doc. No. 180, Ex. E at 189:4-23), and it w:

based on her assessment that probable cause ode 4 te

lo so. (Doe. No. 180, Ex. E at 191:17-25, 192:1-6; 198:23-25

199: 1-12); see Bordenkircher v. Hayes, 434 U.S. 357

4 x ' . ' c ,

1’ / Ss fomynry ACQIZ7INGO TT? t ? r 9a T

>

hat Aldrich’s f:

rosecutor tainted the o

ide his speculation and his c

1O¢

ndisputed evidence «

‘irst, the

hysically alte

vidence does not s Iipperi

knowingly suppressed an’

Doc. No. 130, Ex. E at

he evidence

d unequivocally

vyhich Cuadra refe

Hy at 175:14-2¢

iZew.O7G4e))

T }

yt support Cuadra’s contentions that

uinted by Defendants because there 1

ny of them testified in front of the

99OR.1_1

| at 9 IA: OF 2.

pPerenagants Malntaln flat a

d the evidence does not support,

favor. The Court canne

that the underlyi1

iminal action terminated in his

gree. Favorable termination of the criminal proceedi1

an essential element of § 1983 malicious prosecutio

laim. Brummett v. Camble, 946 F.2d 1178, 1183-84 (5t

ir. 1991). The termination of a criminal proceedings d

0 a plea bargain is not considered a favorable terminatio

Taylor, 36 F.3d at 455-56. However, the instant case do

ot involve those circumstances. Rather, the undisputi

facts shows that the prosecutor made the affirmat!

lecision to dismiss the criminal charges against Cuad)

Where the criminal charges against a plaintiff wv

lropped based on the prosecutor’s affirmative decision

prosecute, the Fifth Cireuit has determined that tl]

|

ni T Vorante

ne 1S innocent.

prosecution li

’

alsa :

allC1ous

riminal proceeding

vas innocent of the underlying Clalm. OULL C17

States, 234 F.3d 30 at *1 (5th Cir. 2000). Cuadra allege:

that evidence existed which, if taken together, establishe:

his innocence of any wrongdoing, but the undisputed

evidence refiects that Cuadra admitted to both Kimball

and then later to Aldrich that he had, in fact, changed the

data. (Doc. No. 13, Ex. Z). While Cuadra claims to hav

changed the data back, there is no evidence that he did so

Thus, even viewing the evidence in a light most favorabl

to Cuadra, the evidence offered by Cuadra merely call

into question whether the State would have been able t«

prove, beyond a reasonable doubt, that he was guilty o

the crime for which he was indicted; however, consider

the evidence, it does not prove his innoce?

j ,

(ia q

uadra alleges that ne was unlawtull

oreed to make bond for his freedom, suffered restricti\

movement and associations ...” (Doe. No. 34 (PI’s Second

Am. Compl.) at 43-44, 1 2). Defendants maintain tha

Cuadra has failed to establish his claim for false arre

\

Defendants also maintain that the . entit

;

BY » ° j

ualified immunit

ne Fourth Amendment | LOW ONSUItULIE

ght upon a person to be free from unreasonabl

eizures of both his person and effects. Const. AMENI

LV: see also, Sorenson v. Ferrie, 134 F.3d 325, 328 (5t)

ir. 1998). Violation of this right may be grounds fo

uit under 42 U.S. § 1983. Sorenson, 134 F.3d at 328

, } ! ¥ A " ‘

ier to actahlich a k'nyrt \rn nan { f

) ‘ y : ¥ i ~~ + - “)1 ’ |

r ( under Hpeebion Lvs, a plaintitl Ifiu ADI

tate common law elements of false arrest, as well as th

deprivation of a constitutional right. The state commo

law elements require a plaintiff to show that there wa

a (1) willful detention, (2) it was without consent, and (:

without authority of law. Casanova v. City of Brookst

119 F.Supp.2d 6389, 651(S.D. Tex. 2000)

“If there was probable cause for the arrest, a cla

x false arrest is not viable.” Casanova, 119 F. Supp

2d at 651. The Fifth Circuit has held that a grand jury

determination that probable cause exists to issue a

indictment also establishes probable cause for issuing

the warrant to arrest the person charged. Rodrigue:

Ritchey, 556 F.2d 1185, 1190-91 (5th Cir. 1977); see also

Campbell, 43 F.3d at 976. Here, there is no dispute that

Cuadra was arrested pursuant to a facially valid arrest

warrant that was issued after a grand jury determined

probable cause existed to issue an indictment against hin

Doe. No. 80, Ex. 24)

(uadra nevertheless contends that proDdable cau

as lacking because he is innocent. Unfortunately, a

explained by the Supreme Court, “|tlhe Constitution

loes not guarantee that only the guilty will be arrested

If it did, § 1988 would provide a cause of action for every

defendant acquitted-indeed, for every suspect released

See Baker v. McCollan, 443 U.S. 187, 145 (1979): see also

Casanova, 119 F.Supp.2d at 652 (recognizing that

warrant is valid even though the court, through lack

" ,

rormation or otherwilst Na ied it for the arrest

le |

ndm

YY

LLit

C

TY)

Ail

~

re

}

>

-

TL

.4h

+4

ad

~~

e

pa

,

avid

protect

vould impermissibly

mployee grievance.’

federal court is

which to view

lecisions that

arencies. [citation omit

¥ \

typically have a variety

the sort of personnel

Y? nk | 1 mwiniainc hipt

ALLL S| COTMDIALTIS, ru

lagra alieges

n of his Fourth At

t by «yt

lal he altered stude

by remaining silent to protect

.

prosecution, and Dy

A

gainst him. (Doc

|

Amendment rights by maliciously and falss

evidence, shifting the blame to him, and refusing to tak«

action which could have prevented his indictment, arrest

ind criminal prosecution. (Doc. No. 34 (Pl’s Second Am

Comp)) at 43-44, §§ f-h; see also, Doc. No. 34 at 46, 11 4

1)(i) concerning his Fourteenth Amendment claims

Defendants have moved for summary Judgment

Cuadra’s conspiracy claims based on the intra corporat

conspiracy doctrine. It is true that the Fifth Circuit has

determined that a single legal entity, such as HISD and

its employees, “is incapable of conspiring with itself’

for purposes of the intra-corporate conspiracy doctrins

Hillard v. Ferguson, 30 F. 3d 649, 653 (Sth Cir. 1994); s

also, Hankins v. Dallas Independent School District, 698

F.Supp. 1323, 13830 (N.D.Tex.1988) (claims under § 1985(8)

for conspiracy cannot stand when the plaintiff teacher sue:

a school and its officials because a school and its official

constitute a single legal entity which cannot conspire wit!

itself); Zentgraf v. Texas A & M University, 492 F.Supp

265, 272-273 (S.D.Tex.1980) (University and officials

constitute single legal entity which cannot conspire wit!

itself). However, the intra-corporate conspiracy doctrin

does not apply where the corporation conspires wit!

a third-party. See Applied Capital In«

Fr. seasn 2d 1189, 1199 (D. NM 2007° ); Zc

Travel Office, 130 F.Supp.2d 991, 997 (N.D

(citing Mehl v. Navistar Int'l Corp., 670 F. Sup}

N.D. Tl. 1987

Defendant Rusty Hardin. Defendants nevertheles:

maintain that the intra-corporate conspiracy doctrine still

applies because Hardin has been dismissed from the case

Defendants refer the Court to no authority in support of

their position. While the Court is not entirely convinced

by Defendants’ argument (Cf. Dennis v. Sparks, 449 U.S.

24, 27 (1980) (dismissal of judge as a defendant based on

judicial immunity did not negate conspiracy claim)), it

need not resolve the issue because Hardin’ will not be

considered a third-party for purposes of the doctrine

See General Refractories Co. v. Fireman’s Fund Ins. Co.,

337 F.3d 297,313-14 (8rd Cir. 2008) (absent a showing that

attorney acted for personal reasons, an insured’s claim

that insurer’s attorney conspired with the insurer t

abuse process under the law was barred by intracorporat

-onspiracy doctrine)

Notwithstanding, Veftendants maintain th

» the extent that Cuadra could state a claim that th

defendants, in their individual capacities, conspired t

-

iolate his rights,'’® his claim fails as a matter of la

ld. The evidence reflects that the attorneys at

‘m considered HISD their client insofar as they asserted thi

attorney-client privilege to their communications and billed

HISD approximately $58,000.00 in legal fees for the work the

performed. (See Doc. No. 130, Ex. J (Andy Drumheller Depositio1

Pee

4 4 AA :

rN A? | j } , - y j . a ?

ha ALU LLI ra | t/ LS i¥J oo Ren

.n. 30 (S.D. Tex. 2007) (recognizing that an actionable clai1

night exist where defendants act for their own personal benefits

o + } } + —- > > > +34 7 I

- f } r } , ser ‘ , |

Oppt Sed | eP Dé ] 0} eT ILS Ve j it ¢

because he cannot pr le requ}

conspiracy claim and, by failing to establ in ;

deprivation of his constitutional rights, Defendant

entitled to qualified immunity. (Doc. No. 80 at 61]

73). The Court agrees

In order to establish a prima

under § 1983, a plaintiff must demonstrate

]

agreement between persons Send inder color of |:

to commit an illegal act, and (2) an actual deprivation |

the plaintiff's constitutional rights s in furtherance of tl

conspiracy. Hale v. Townley, 45 F.3d 914, 920 (5th C

1995). To acme the plaintiff must plead specific fa

that, if proved, would establish the elements of the clai1

Marts v. Hines, 68 F.3d 134, 136 (5th Cir. 1995). It is tru

that an agreement may be inferred from circumstanti

evidence, however, the circumstantial evidence mu

be “sufficient to permit a reasonable jury to conclud

that a meeting of the minds had occurred and that t)

parties had an understanding to achieve the conspirac

objectives.” Green v. Benden, 281 F.3d 661, 665-66 (71

Cir. 2002). A plaintiff’s mere conclusory allegations

a conspiracy are insufficient to support a claim unde

§ 1983. Wilson v. Budney, 976 F.2d 957, 958 (5th Cir. 1992

Lynch v. Cannatella, 810 F.2d 1363 (5th Cir. 1987). Her:

aside from his beliefs or speculation, Cuadra offers 1

evidence to support his claims that Defendants engag:

in a conspiracy. Cuadra’s claim also fails becau

F.Supp.1258, 1261 (&.D. Tex. 1992) (noting that, wi

cannot conspire with itself, a conspiracy may be estab

individual de fendants are named and those defendant

the scope of their en ) rT nt for

' 2 | } 1 ot 2 | + Sk ‘

Lt Stablisneg af} a\ Luda! dep) lVavl

H‘ourteenth Amendment right

HISD Board’s Liability Under

Defendant HISD moves for summary judgm«¢

uadra’s claim of governmental liability. (Doc. No. 80 a

93-61). In particular, Defendant maintains that Cuadra’

claims against it are time-barred; that his allegation:

cannot be attributed to an HISD policymaker; that ther

no evidence of an “official policy”; and, even assuming

an official policy existed, there is no evidence that it wa

the moving force behind the alleged violations of Cuadra

nstitutional rights. (/d. at 61)

In Monell v. Di partment of soc. Servs. of New 2

ie Supreme Court concluded that a municipality i:

“person” within the meaning of § 1983. Monell v. Dep’t

of Social Servs., 486 U.S. 658, 689 (1978). The Court

liminated respondeat superior liability for governmental

inits when it held that a municipality may not be sued

under § 1983 for an injury inflicted solely by its employee:

Id. at 694. “Instead, it is when execution of a government

17. Insofar as Cuadra attempts to plead new claims in ]

tesponse (e.g., HISD and/or Stripling and/or Patterson and

r Wichmann failed to implement appropriate training ar

upervision of Martin, Bonnette, Dombrino, Wichmann, Patterso

ind Aldrich not to engage in [unJethical behavior and accurate

report student data), that were not alleged in his Second Amends

omplaint, Defendants’ have objected to any such attempt. (D:

34 at 13). Defendant ect ure tained

|

tom, whether made by its lawmaker:

policy or cus

those whose edicts or acts may fairly be said to represent

official policy, inflicts the injury that the government

in entity is responsible under § 1983.” /d. at 694

Congress did not intend to impose liability

municipality under § 1983 unless deliberate action

attributable to the municipality itself is the “moving force’

behind the plaintiff’s deprivation of federal rights. Board

of the County Comm'rs of Bryan County v. Brown, 520

U.S. 397, 400 (1997). The Brown Court further stated that

a § 1988 plaintiff must “show that the municipal action wa

taken with the requisite degree of culpability and must

demonstrate a direct causal link between the municipal

action and the deprivation of federal rights.” /d. at 404

Thus, to prevail on a claim for school district liability

under 42 U.S.C. § 1983 requires proof by the plaintiff o!

(1) a policymaker; (2) an official policy or custom; and (3

a violation of constitutional rights whose “moving forces

the policy or custom. Piotrowski v. City of Houstor

237 F.3d 567, 578 (5th Cir.2001) (citing Monell v. Dept

Social Services. 436 U.S. 658. 694 (1978&))

iS

Defendant initially argues that the Superintendent

SHS principal and other SHS employees that Cuadr

identifies in his amended complaint are not “policymaker

for purposes of imposing § 1983 liability. Defendant

18. In his Second Amended Complaint, Cuadr:

HISD Superintendents Stripling, DeWalt, Patterson, Saav

ind SHS principal Wichmann as the poli

1D:6.9D

correct 1n tnell position. ine 1agentity of the nin:

policymakers whose conduct can create lability |

letermined by state law. In fivera v. Houston Indep

School Dist., 349 F.3d 244 (5th Cir. 2008), the Fifth Circuit

held that under Texas law, the Board of Trustees, not the

Board in combination with any subordinate school district

officials (2.e. teachers, principals, and superintendents), |

he “official policymaker” for purposes of § 1983 liability

ld. at 247-48. Although principais and superintendent:

might have “decision-making authority” under the Texa:

Education Code, they do not have “the policymaking

wuthority required to sustain liability under § 19838.” Se

d. at 248. The Fifth Circuit stated that “the Board is th

ne and only policymaker for HISD,” and the Board ha

ot delegated any policymaking authority to subordinate

chool district personnel. See 2d. (“ [‘T{his delegation «

lecision-making authority [to the principal] does no

egate the fact that both under Texas law, and the Board

wn policie , final policyn iking thor) 7

th the Board.

adra ClallIMl Le } LE LRADLLIVY Ue

because he has failed to show any violation that woul

attributable to a “policymaker” for HISD. Cuad)

innot impute the actions of either the superintendent

r the principal to the HISD Board for purposes of § 192

ability. Brittany B. v. Martinez, 494 F.Supp.2d 534, 5

W.D.Tex.2007). In addition, while Cuadra attempt

} \ (

vue that a aelepation ol dee) ion-nN aking LO SLrip!

55a

Appendix C

3d at 248; see generally, City of St. Louis v. Praprotnik,

A85 U.S. 112, 125 (cautioning that “a federal court would

not be justified in assuming that municipal policymaking

authority lies somewhere other than where the applicable

law purports to put it.”).

Notwithstanding the lack of a Defendant with official

policymaking authority, Cuadra cannot establish a basis

for imposing liability on the school district for another

reason. As asserted by HISD, Cuadra has presented

no evidence of a policy, practice, or custom of deliberate

indifference that was the moving force in a violation of his

rights; nor does HISD have a policy of being deliberately

indifferent to the rights of its employees. In order to

prevail on his § 1988 claim against HISD, Cuadra must

show that his constitutional rights were violated through

the execution of an official policy or custom properly

attributable to the school board itself. Hugene v. Alief

Indep. Sch. Dist., 65 F.8d 1299, 1304 (5th Cir.1995). It is

not enough for Cuadra to merely identify conduct properly

attributable to the district; he must also demonstrate

that, through its deliberate conduct, the custom or policy

of the district was the “moving force” behind the injuries

alleged. Doe v. Dallas Indep. Sch. Dist., 153 F.3d 211, 216

(5th Cir.1998); Brown, 520 U.S. at 403.

Kor purposes of the § 1983 claim against HISD,

“official policy” is:

1. A policy statement, ordinance, regulation,

or decision that is officially adopted and

promulgated by the [district’s] lawmaking

hoa

Appendix C

officers or by an official to whom the lawmakers

have delegated policy-making authority; or

2. A persistent, widespread practice

of [district] officials or employees which,

although not authorized by officially adopted

and promulgated policy, is so common and

well settled as to constitute a custom that.

fairly represents [district] policy. Actual or

constructive knowledge of such custom must

be attributable to the governing body of the

[district] or to an official to whom that body had

delegated policy-making authority.

Webster v. City of Houston, 735 F.2d 838, 841 (5th

Cir.1984). Of course, Cuadra has not presented evidence

of a formal “policy statement” of maliciously prosecuting,

falsely arresting or engaging in retaliatory criminal

prosecution against employees who speak out about issues

that was “officially adopted and promulgated” by the

board. In fact, Cuadra has coneeded that the HISD has

policies that prohibit retaliation against an employee who

exercises his constitutional rights. (See Doe. No. 34 at 48,

{| a.(2).ii). Rather, relying on the second definition of “official

policy,” Cuadra essentially argues that the HISD Board

established an informal custom of ignoring or condoning

the actions of its Superintendents or principals when they

are maliciously prosecuting, falsely arresting or engaging

in retaliatory criminal prosecution against employees who

speak out on issues such that it constituted official Board

policy, and that this policy was the moving force behind

the alleged violation of Cuadra’s constitutional rights.

ola

Appendix C

Cuadra’s conclusory allegations are not sufficient to create

a genuine issue of material fact to defeat Defendant's

summary judgment motion. Further, no evidence shows

that HISD’s Board had actual or constructive knowledge

of any such alleged custom or practice.

Finally, even assuming Cuadra could show the

Board was not assiduous in preventing its supervisory

employees from maliciously prosecuting, falsely arresting

or engaging in retaliatory criminal prosecution against

employees who speak out on issues, this does not

demonstrate that the Board was deliberately indifferent

towards the constitutional rights of Cuadra. The evidence

not only reveals HISD’s appropriate actions upon learning

of the reporting issues, but the evidence also reveals

that Defendants’ actions prior to the media reports were

appropriate and satisfied any duty owed to Cuadra. The

evidence in this case is insufficient as a matter of law

to establish that HISD maintained a policy, custom or

practice of maliciously prosecuting, falsely arresting or

engaging in retaliatory criminal bed. SA against its

employees or Cuadra.

G. Punitive Damages

Cuadra has asserted a claim for punitive damages

against Defendant HISD, however, as a matter of law,

punitive damages are not recoverable against a publie

school district such as HISD. See, City of Newport v.

Fact Concerts, Inc., 453 U.S. 247, 271 (198); Mosley v.

Houston Community College, 951 F.Supp. 1279, 1290

(S.D. ‘Tex. 1996).

Appendix (

CONCLUSION

Kor all the reasons discussed herein, the Court

RECOMMENDS that Defendants’ Motion for Summary

Judgment (Doc. No. 80) be GRANTED; that Plaintiff's

Partial Motion for Summary Judgment (Doc. No. 87) be

DENIED; and that Plaintiff's Second Amended Complaint

be DISMISSED, with prejudice, in its entirety.

The Clerk SHALL send copies of this Report and

Recommendation to the Parties. The Parties SHALL

have until September 1, 2009, to have written objections,

filed pursuant to 28 U.S.C. § 686(b)(1)(C), physically on

file in the Office of the Clerk. The Objections SHALL be

electronically filed or mailed to the Clerk’s Office at P.O

Box 61010, Houston, Texas 77208. Any Objections filed

SHALL be contained in a written document specifically

entitled “Objections to the Report and Recommendation

of the Magistrate Judge”, which will then be forwarded

to the District Judge for consideration. Failure to file

written objections within the prescribed time SHALL bar

the aggrieved party from attacking on appeal! the factual

findings and legal conclusions aecepted by the District

Judge, except upon grounds of plain error

DONE at Galveston, Texas. this 17th dav of Augu

Z0QY

JOHN R. FROESCHNER

UNITED STATES MAGISTRATE JUDG

ova

APPENDIX D — ORDER DENYING PETITION

FOR REHEARING OF THE UNITED STATES

COURT OF APPEALS FOR THE FIFTH CIRCUIT,

FILED JANUARY 19, 2011

IN THE UNITED STATES COURT OF APPEAI

FOR THE FIFTH CIRCUIT

Appeal from the United States District Court for tl

Southern District of Texas, Houston

No. 09-20715

KENNETH CUADRA

HOUSTON INDEPENDENT SCHOOL DISTRICT;

CAROL WICHMANN; MARMION DAMBRINOQO;

BILLY ALDRICH; BETH BONNETTE; MELBA

MARTIN; ANNE PATTERSON,

Defendants-Appelle

ON PETITION FOR REHEARING EN BANG

(Opinion 11/17/10, 5 Cir., , 3d

Before JONES, Chief Judge, and REAVLEY

HAYNES, Cireuit Judges

AT)

as a Petition for Panel Rehearing, the Petition

for Panel Rehearing is DENIED. No member

of the panel nor judge in regular active service

of the court having requested that the court be

polled on Rehearing En Bane (Fep. R. App. P

and 5™ Cir. R. 35), the Petition for Reh

venearills

lreating the Petition for Rehearing En |

Kin Bane is DENIED