Filed: May 23, 2002
Latest Update: Feb. 21, 2020
Summary: IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT _ No. 01-20258 _ TERRY W. LYNCH, Plaintiff-Appellant, versus HARRIS COUNTY TEXAS; DICK MOORE, Constable Precinct 4 Harris County Texas in his official capacity; and CORPORAL J. H. WRIGHT, Deputy Constable, Precinct 4 Harris County Texas, Individually, and in his official capacity, Defendants-Appellees. _ Appeal from the United States District Court For the Southern District of Texas (No. 00-CV-402) _ May 22, 2002 Before DUHÉ, DEMOSS, an
Summary: IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT _ No. 01-20258 _ TERRY W. LYNCH, Plaintiff-Appellant, versus HARRIS COUNTY TEXAS; DICK MOORE, Constable Precinct 4 Harris County Texas in his official capacity; and CORPORAL J. H. WRIGHT, Deputy Constable, Precinct 4 Harris County Texas, Individually, and in his official capacity, Defendants-Appellees. _ Appeal from the United States District Court For the Southern District of Texas (No. 00-CV-402) _ May 22, 2002 Before DUHÉ, DEMOSS, and..
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IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
__________________________
No. 01-20258
__________________________
TERRY W. LYNCH,
Plaintiff-Appellant,
versus
HARRIS COUNTY TEXAS; DICK MOORE, Constable
Precinct 4 Harris County Texas in his official
capacity; and CORPORAL J. H. WRIGHT, Deputy
Constable, Precinct 4 Harris County Texas,
Individually, and in his official capacity,
Defendants-Appellees.
___________________________________________________
Appeal from the United States District Court
For the Southern District of Texas
(No. 00-CV-402)
___________________________________________________
May 22, 2002
Before DUHÉ, DEMOSS, and CLEMENT, Circuit Judges.
PER CURIAM:*
Terry W. Lynch appeals an adverse summary judgment on his §
1983 claims for unreasonable search and seizure, excessive force,
false arrest, and malicious prosecution. For the following
reasons, we reverse the district court’s grant of summary judgment
on the unreasonable search and seizure claim, affirm the district
*
Pursuant to 5TH CIR. R. 47.5, the court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
court’s judgment in all other respects, and remand for further
proceedings consistent with this opinion.
I.
When Terry W. Lynch arrived at work at Compaq Computers in
Houston, Texas on April 30, 1998, Harris County Deputy Constable J.
H. Wright was blocking the entrance to the parking lot with his
police vehicle while he was talking to a Compaq security officer.
Lynch waited about a minute, then honked his horn and yelled, “Hey,
man, I got to go to work.” Wright drove away, and Lynch entered
the parking lot.
According to Lynch, Wright then activated the flashing red
lights on his police car, blocked Lynch’s vehicle, and began to
repeatedly ask Lynch what his “problem” was. The two men exchanged
insults, and Wright got out of his car and asked Lynch for his
driver’s license. While Wright was checking Lynch’s
identification, Lynch drove away and tried to park. Wright pursued
him, ordered Lynch out of the vehicle, frisked him, and searched
the car for weapons.
After searching the car, Wright ordered Lynch to step back and
attempted to pat him down again. Lynch testified that his foot
“may have brushed [Wright’s] foot or leg or whatever” when he moved
back and that Wright grabbed him, lifted him up as if to body slam
him, and put him back down. After talking to Compaq Security
Manager Walter Birmingham, Wright returned Lynch’s driver’s license
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and allowed him to leave. Wright later filed a complaint against
Lynch for resisting arrest, but the charge was dismissed.
Lynch filed the instant suit asserting claims of unreasonable
search and seizure, excessive force, false arrest, and malicious
prosecution against Wright, Constable Dick Moore and Harris County,
Texas. The district court dismissed Lynch’s claims against Harris
County and adopted the magistrate judge’s report and recommendation
granting summary judgment on the claims against Wright and Moore.
Lynch now appeals the summary judgment.
II.
Lynch first contends that the district court erroneously
admitted several affidavits offered on behalf of the defendants.
We review claims of improperly admitted evidence for harmless
error, affirming the district court’s judgment unless the ruling
affected the substantial rights of the complaining party. See
Tanner v. Westbrook, 174 F.3d 542, 546 (5th Cir. 1999). Since the
magistrate judge performed her own analysis and did not rely on any
of the challenged portions of the affidavits, we find that Lynch’s
first claim of error lacks merit.
Lynch focuses his appeal on the district court’s decision to
grant summary judgment, which we review de novo. See Peavy v.
WFAA-TV, Inc., 221 F.3d 158, 167 (5th Cir. 2000). Summary judgment
is appropriate if "the pleadings, depositions, answers to
interrogatories, and admissions on file, together with the
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affidavits, if any, show that there is no genuine issue as to any
material fact and that the moving party is entitled to judgment as
a matter of law." FED. R. CIV. P. 56(c); see also Celotex Corp. v.
Catrett, 477 U.S. 317, 322-23 (1986). On a motion for summary
judgment, a court must review the facts in the light most favorable
to the non-movant. See
Peavy, 221 F.3d at 167.
Lynch first contends that the district court erred in granting
summary judgment on his unreasonable search and seizure claim.
Under Terry v. Ohio, 392 U.S. 1, 30 (1968), police officers may
conduct a brief investigatory stop of an individual if they have a
reasonable suspicion that criminal activity is afoot or that the
person has been involved in a crime. Lynch submits that he was
seized when Wright asked “What’s your problem?” and that Wright
lacked reasonable suspicion for the seizure. Viewing the
allegations in the light most favorable to Lynch, we agree.
The first issue is whether Wright’s asking Lynch if he had a
problem rises to the level of a Terry stop. As the Supreme Court
noted in Terry, “[o]bviously, not all personal intercourse between
policemen and citizens involves ‘seizures’ of persons. Only when
the officer, by means of physical force or show of authority, has
in some way restrained the liberty of a citizen may we conclude
that a ‘seizure’ has occurred.” 392 U.S. at 19 n.16. In Michigan
v. Chesternut,
486 U.S. 567 (1988), the Supreme Court elaborated
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that there is a show of authority by an officer only if a
reasonable person believes she is not free to leave.
Wright characterizes his initial conversation with Lynch as
completely voluntary. However, according to Lynch’s recitation of
the facts, Wright turned on his flashing red lights, blocked
Lynch’s vehicle, and repeatedly asked him if he had a problem.
Accepting this allegation as true, we find that Wright made a
sufficient show of authority to cause Lynch to believe he was not
free to leave. See Malina v. Gonzales, 994 F.2d 1121, 1126 (5th
Cir. 1993) (finding that defendant's use of flashing red lights to
stop plaintiff on interstate was seizure by use of show of
authority).
Assuming that a Terry stop occurred, we must turn to the
question of whether Wright had reasonable suspicion to conduct one.
In Malina, 994 F.2d at 1126, we held that the defendant lacked
reasonable suspicion to stop a vehicle after the driver did nothing
more than honk his horn and motion the defendant to change lanes.
Similarly, Lynch contends that Wright had no reasonable suspicion
to stop him because all he had done was blow his horn and say “Hey,
man, I got to get to work.” Contrary to Wright’s allegations that
Lynch appeared emotionally distressed and therefore posed a threat
of workplace violence, Lynch insists that he was not agitated or
upset at this point. As the non-movant, Lynch’s version of the
facts must be credited for purposes of summary judgment. Accepting
5
Lynch’s tale of the encounter as true, Wright did not have
reasonable suspicion to initiate a Terry stop. Accordingly, since
Lynch has raised sufficient issues of fact to merit a trial on his
cause of action for unreasonable search and seizure, we must
reverse the district court’s summary judgment on that claim.
Lynch further contends that the district court erroneously
granted summary judgment on his claims for excessive use of force,
false arrest, and malicious prosecution. We find that these claims
are without merit and affirm the district court’s judgment. First,
Lynch fails to state an excessive force claim because he has not
alleged more than a de minimis injury. See Williams v. Bramer, 180
F.3d 699, 703 (5th Cir. 1999).
Second, Lynch’s false arrest claim is invalid because he was
not placed under arrest until he voluntarily turned himself in on
an outstanding warrant that was issued by an independent
magistrate. Furthermore, by failing to provide any legal or
factual support for this issue in his brief, Lynch has waived the
challenge to the district court’s disposition of the false arrest
claim. See Cavallini v. State Farm Mut. Auto Ins. Co., 44 F.3d
256, 260 n.9 (5th Cir. 1995); United States v. Maldonado,
42 F.3d
906, 910 n.7 (5th Cir. 1995).
Finally, we affirm the summary judgment on Lynch’s malicious
prosecution claim. As the magistrate judge explained, Lynch’s
prosecution for resisting arrest is justified by § 38.03 of the
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Texas Penal Code, which penalizes anyone who prevents or obstructs
a peace officer from effecting any arrest or search and provides
that it is no defense to prosecution that the arrest or search was
unlawful. TEX. PENAL CODE ANN. § 38.02. In the instant case, Lynch
admits that he drove away from the scene while Wright was checking
his identification, that he “brushed” against Wright during the pat
down search, and that he verbally sparred with Wright throughout
the encounter. Even though the Terry stop was unjustified,
probable cause existed for a resisting arrest charge because Lynch
admittedly defied Wright throughout the encounter. Since probable
cause existed, Lynch’s malicious prosecution claim fails. See
Evans v. Ball, 168 F.3d 856, 859 n.4 (5th Cir. 1999)(holding that
the absence of probable cause for the proceedings is a prerequisite
for a malicious prosecution claim).
III.
For the reasons stated above, we reverse the district court’s
grant of summary judgment on Lynch’s unreasonable search and
seizure claims, affirm all other aspects of the judgment, and
remand for proceedings consistent with this opinion.
REVERSED IN PART, AFFIRMED IN PART, AND REMANDED.
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