Take the Fifth

Designated for publication

• Anokwuru v. City of Houston, 20-20295, appeal from S.D. Tex.
  • Wilson, J. (Stewart, Higginson, Wilson), § 1983, false arrest, malicious prosecution
  • Affirming 12(b)(6) dismissal of plaintiff’s § 1983 claims arising from his allegations that Officer M.R. Francis arrested him without probable cause, maliciously prosecuted him, and racially discriminated against him, and that the City of Houston failed to adequately train its police officers. The district court dismissed the claims on the basis of the City’s argument that Anokwuru’s § 1983 claims against the City were barred under Monell v. Department of Social Services, 436 U.S. 658 (1978), and sua sponte dismissed his § 1983 claims against Officer Francis. (In a series of amended complaints, the plaintiff had dropped state-law tort claims and claims against the Houston Police Department).
  • The Court held that the plaintiff did not state a claim for false arrest. First, the Court held that the plaintiff’s allegation that he was indicted shows that he was indicted, supporting the district court’s holding that “the chain of causation for the alleged false arrest was broken, insulating Officer Francis, and the City, from liability.” The Court then rejected any argument for an exception in this case to the independent-intermediary doctrine, finding, “Anokwuru fails to allege anything akin to a specific allegation that Officer Francis ‘deliberately or recklessly’ provided false information to either the grand jury or magistrate judge. To the extent Anokwuru’s allegations suggest that Officer Francis withheld information, we find that these allegations likewise do not rise ‘above the speculative level.'”
  • The Court then held that the plaintiff abandoned his malicious prosecution claim on appeal; and that, regardless, “There is no freestanding right under the Constitution to be free from malicious prosecution.”
  • The Court upheld the dismissal of the plaintiff’s equal protection claims because “Anokwuru fails to allege that he was treated differently than a person who is similarly situated. He likewise fails to allege that his treatment emanated from discriminatory intent.” (Internal citations omitted).
  • The Court held that the plaintiff’s failure-to-train claim against the City failed because the plaintiff did not allege a pattern of conduct by the City’s police officers, but rested only on his allegations of his own incident. “Granted, in certain limited cases, a plaintiff may establish deliberate indifference through a single incident. But Anokwuru’s allegations do not pass muster under this narrow exception because the single-incident exception is generally reserved for those egregious cases in which the state actor was provided no training whatsoever.”
  • The Court held that the district court did not abuse its discretion in denying the plaintiff’s motion to amend his complaint for a fourth time. “[W]e fail to see how Anokwuru’s proposed fourth amended complaint was not futile. He presented no new factual allegations or additional claims. To the contrary, the fact section of the fourth amended complaint is an identical recital of that in his third amended complaint. The only variance between the two pleadings is the addition of a few immaterial paragraphs in support of his false arrest and malicious prosecution claims.”
  • The Court then held there was no error in the district court’s sua sponte dismissal of the claims against Officer Francis, as the plaintiff had fair notice and opportunity to respond to that dismissal because it was part of the magistrate judge’s report and recommendation, and because the gravamen of the third amended complaint’s claims against Officer Francis was the same as the multiplicitously briefed claims against the City.

• U.S. v. Norbert, 20-60106, appeal from S.D. Miss.
  • Davis, J. (Davis, Stewart, Oldham), Oldham, J., dissenting; criminal, search and seizure
  • Affirming district court’s ruling preceding trial on one count of defendant being a felon in possession of a firearm that the arresting officers did not have reasonable suspicion to stop the defendant and search his car and granting defendant’s motion to suppress the gun they found in their search of his car and defendant’s statements to the arresting officers.
  • The Court examined the factors for reasonable suspicion as articulated in U.S. v. Martinez, 486 F.3d 835, 861 (5th Cir. 2007): “the credibility and reliability of the informant, the specificity of the information contained in the tip or report, the extent to which the information in the tip or report can be verified by officers in the field, and whether the tip or report concerns active or recent activity, or has instead gone stale.”
  • The Court found that the credibility of the informant weighed against reasonable suspicion, because the informant was anonymous and did not provide specific details about the alleged criminal activity, but only about the accused, and that the police did not respond by visiting the apartment complex until eight hours after the anonymous tip that drug-dealing activity was occurring in the parking lot.
  • As to specificity of the information in the tip, the Court held that this only weighed partly in favor of the reasonableness of suspicion: “Although the information provided was arguably sufficient to allow the police to identify Norbert, … it did not provide sufficient detail to be reliable in its assertion of illegality.”
  • The Court found that the verification of information in the tip weighed against the reasonableness of suspicion, because the officers only verified “innocent information” (the identity of the accused) prior to the investigatory search, and did not verify any of the criminal activity asserted in the tip prior to the search.
  • The Court held that the eight-hour gap between the tip and the search weighed in favor of reasonableness of suspicion, where the tip was of a pattern of the criminal activity, likely to be repeated.
  • Balancing the factors, the Court held, “Viewing the evidence in the light most favorable to Norbert, we conclude that the district court’s ruling should be affirmed because there is [a] reasonable view of the evidence to support it. In summary, the innocent information from the tip allowed the officers to identify Norbert and his car in the parking lot, but the officers patted all the men down after only verifying this ‘innocent information.’ Inexplicably, the officers did not get the informant’s name or phone number when she called, and she did not clearly advise the officers that she had personally observed any illegal drug activity. The officers also did not observe any drug activity occurring, nor did they attempt to speak with someone in the management office to identify who had phoned in the tip.” The Court noted that its primary disagreement with the dissent was its failure to apply the standard of review to view the evidence in the light most favorable to the accused.
  • Judge Oldham dissented, opining that the “majority holds that a police officer cannot conduct a Terry stop until he personally witnesses the commission of a crime and hence has probable cause to make an arrest. Of course, Terry itself held that officers need mere reasonable suspicion—far less than probable cause—to stop someone. See Terry v. Ohio, 392 U.S. 1 (1968). More than 50 years of Fourth Amendment cases depend on that distinction. So the majority’s decision to underrule it will have grave consequences that extend far beyond this case.”

Unpublished

• Martin v. Lumpkin, 19-10987, appeal from N.D. Tex.
  • per curiam (Wiener, Southwick, Duncan), habeas corpus
  • Affirming dismissal of habeas petition for failure to exhaust state post-conviction remedies.

• Smith v. Vannoy, 19-30261, appeal from E.D. La.
  • per curiam (Haynes, Duncan, Engelhardt), habeas corpus
  • Affirming dismissal of successive habeas petition as untimely.

• Ingram v. Alvarado, 19-40135, appeal from E.D. Tex.
  • per curiam (Owen, Haynes, Costa), prisoner suit
  • Affirming dismissal of prisoner’s § 1983 claims as frivolous.

• Mendez-Lopez v. Garland, 19-60667, petition for review of BIA order
  • per curiam (Owen, Ho, Engelhardt), immigration
  • Denying in part and dismissing in part Guatemalan citizen’s petition for review of BIA order upholding order of removal.

• U.S. v. Reece, 20-10319, appeal from N.D. Tex.
  • per curiam (Haynes, Willett, Ho), criminal, sentencing
  • Affirming above-guidelines sentence of 395 months on conviction of multiple counts, including conspiracy to commit bank robbery, attempted bank robbery, bank robbery, and using and carrying a firearm during and in relation to a crime of violence.

• U.S. v. Griffith, 20-50644, appeal from W.D. Tex.
  • per curiam (Wiener, Southwick, Duncan), criminal, guilty plea
  • Affirming guilty-plea conviction for conspiracy to possess with intent to distribute 50 grams or more of methamphetamine.

• U.S. v. Perea, 20-50754, appeal from W.D. Tex.
  • per curiam (Owen, Haynes, Costa), criminal, search and seizure
  • Affirming conviction, and denial of motion to suppress, of possessing a firearm following a felony conviction, possessing a firearm while using controlled substances, possessing an unregistered firearm, and manufacturing a firearm.

• Cascade Capital Group, LLC v. Landrum, 20-60271, appeal from S.D. Miss.
  • per curiam (Jolly, Stewart, Oldham), breach of contract
  • Affirming denial of motion for new trial for defendant who admitted all allegations in complaint.