# Petition for Writ of Certiorari — Cuadra v. Houston Independent School District > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386006_1134%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 2011 - **Citation:** 563 U.S. 1033 ## Text 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of the United States Court of Appeals for the Fifth Cireuit filed November 17, 2010 is set forth as Appendix A. The unpublished opinion of the United States District Court for the Southern District of Texas, Houston Division, dated September 11, 2009 is set forth as Appendix B.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’ ~ 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 I 41) } , rs) 4 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 ’ 1)? me a cain it Ach semi. ; Wichmann], for a meeting id to attend the ne LA Martin] had not done her job that y toe at they [Wichmann, Dambri d called [Martin] | : " ‘ 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 | 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 s c LV ¢ ~ rl ° - > } 4 ” r —_ — d “ - + “ 4 4 a = a « “ —" ~~ 4 : eo 4 4° — . = > > be 4 eT ' » v7 — y « e . , =) . - a" — ~ a aan a, + f ro ad - fp + - 4 fd . , = ’ . 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A = be ~ 4 , i. ty ip, ~ at an ~ 4 ad ‘ ~—. a > ( = r ae = " —_ = » ° . as rs 4 — . - 7 ae ae — e AN 2 4 OS we — — — TP Ae — 4. a ~ ood = 4 —_ y 9 4 = = = ee - » be A, a = ~ —- — ° . — ~ => —_— + — pas a dun A mm L - oF A + ” ra } f e ] ard - ~ + “4 out f G. 4d rs ~ —_ my —— ~ 4 . . b. om = : 4 ts a . 4 pat : os ‘ aed ~ 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 --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386006_1134%3A1. Public record. Not legal advice.