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Nerio v. Evans

United States District Court, W.D. Texas, Austin Division

June 26, 2017

CARLOS HENRY NERIO
v.
DEREK EVANS and AMY KING

          REPORT AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE

          ANDREW W. AUSTIN UNITED STATES MAGISTRATE JUDGE

         Before the Court are Defendants Evans and King's Motion to Dismiss Pursuant to Rule 12(b)(6) (Dkt. No. 4); Plaintiff's Response (Dkt. No. 7); and Defendants' Reply (Dkt. No. 8). The District Court referred the above motion to the undersigned Magistrate Judge for a report and recommendation pursuant to 28 U.S.C. §636(b) and Rule 1(c) of Appendix C of the Local Rules.

         I. BACKGROUND[1]

         Plaintiff Carlos Henry Nerio brings this 42 U.S.C. § 1983 case against Texas Department of Public Safety Officers Derek Evans and Amy King, in their individual capacities, alleging false arrest and false imprisonment[2] in violation of his Fourth and Fourteenth Amendment rights. In 2015, DPS was involved in an investigation of a methamphetamine distribution network headed by Frank Lee Dones, Jr. As part of that investigation, King and Evans conducted surveillance of Dones, used a confidential informant to make a controlled methamphetamine buy from Dones, and obtained court orders authorizing pen registers for two of Dones' telephones. King learned that one of Dones' frequent callers was a man named Carlos Nerio whose telephone number was xxx-xxxx-2438. Defendant King conducted an ACCURINT search of that telephone number and learned that Nerio was residing at an address on Ed Bluestein Blvd. King then allegedly entered the 2438 phone number into a Facebook search engine, which associated that number with a “Carlos Nerio.”

         In April 2016, King listened in on additional narcotics related conversation between Dones and Nerio, who was still using the 2438 telephone number. Nerio texted Dones: “This is Carlos. I'm on my way. Are you home?” King and Evans were part of a surveillance team that traveled to Dones' house and observed Nerio exit his vehicle, enter Dones' residence and drive away a few minutes later. From this surveillance, King obtained the license plate from the vehicle, which he confirmed from a database search was registered to “Carlos Nerio.” Based on their investigation, Evans drafted an affidavit for an arrest warrant. The affidavit named the suspect as “Carlos Henry Nerio, Jr., ” and stated that he resided on a street called “Wandering Way”-not the Ed Bluestein Blvd. address obtained from ACCURINT earlier in thier investiation. At 5:30 in the morning of June 30, 2016, peace officers entered the home on Wandering Way and executed the arrest warrant by taking Plaintiff into custody. Plaintiff and his wife objected that he had not committed any crime and that they were arresting the wrong person. Nerio was nevertheless handcuffed, placed in the back of a police car and transported to the Travis County Jail. He was charged with Criminal Conspiracy to commit Felony Manufacturing/Delivery of a Controlled Substance, and his bond was set at $20, 000. The arrest was reported on the local evening news, which led to Nerio being fired. Further, he was forced to hire counsel and post a bond. It was not until On August 30, 2016, that the charges were dismissed, which were dropped due to “mistaken identity.” Nerio alleges that agents Evans and King knew, or should have known, that Nerio was not the person involved in the drug conspiracy they were investigating, when they swore to the information in the warrant used to arrest him. He points out that he never possessed the 2438 telephone number tied to the actual suspect. Evans swore in the arrest affidavit that King put the 2438 telephone number into a Facebook search engine, and it showed that it belonged to a “Carlos Nerio.” While Nerio asserts that he has never had a Facebook page, he alleges that placing the 2438 phone number into a Facebook search returns with no results. Nerio further notes that he has never lived on Ed Bluestein Blvd., the address connected to the vehicle registration of the car the officers observed at Dones' residence. Nerio adds that he has resided at, and been the owner of, his Wandering Way home since June 2011. Evans swore that Carlos Nerio's vehicle registration was obtained and checked during the surveillance and that it came back to the Plaintiff, while an accurate check of that registration would have revealed that it was not registered to a Carlos Nerio residing on Wandering Way, but rather one on Ed Bluestein Blvd. Nerio asserts that King or Evans merely ran an ACCURINT database search on the name “Carlos Nerio” and selected the dominant name on the database, which was Plaintiff, not the “Carlos Nerio” they had observed and investigated in the course of investigating the drug conspiracy.

         Nerio alleges the arrest violated his constitutional rights, and brings this 1983 suit to recover the damages he incurred. Evans and King move to dismiss Nerio's claims, asserting that there was probable cause for his arrest, and that they are entitled to qualified immunity.

         II. LEGAL STANDARD

         Federal Rule of Civil Procedure 12(b)(6) allows a party to move to dismiss an action for failure to state a claim upon which relief can be granted. Fed. R. Civ. P.12(b)(6). In deciding a Rule 12(b)(6) motion to dismiss for failure to state a claim, “[t]he court accepts all well-pleaded facts as true, viewing them in the light most favorable to the [nonmovant].” In re Katrina Canal Breaches Litig., 495 F.3d 191, 205 (5th Cir. 2007) (internal quotation marks omitted), cert. denied, 552 U.S. 1182 (2008). While a complaint attacked by a Rule 12(b)(6) motion does not need detailed factual allegations in order to avoid dismissal, the plaintiff's factual allegations “must be enough to raise a right to relief above the speculative level.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). A plaintiff's obligation “requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do.” Id. The Supreme Court has explained that a complaint must contain sufficient factual matter “to state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Twombly, 550 U.S. at 570). “A claim has facial plausibility when the [nonmovant] pleads factual content that allows the court to draw the reasonable inference that the [movant] is liable for the misconduct alleged.” Id. “The plausibility standard is not akin to a ‘probability requirement, ' but it asks for more than a sheer possibility that a defendant has acted unlawfully.” Id. The court generally is not to look beyond the pleadings in deciding a motion to dismiss. Spivey v. Robertson, 197 F.3d 772, 774 (5th Cir. 1999). “Pleadings” for purposes of a Rule 12(b)(6) motion include the complaint, its attachments, and documents that are referred to in the complaint and central to the plaintiff's claims. Collins v. Morgan Stanley Dean Witter, 224 F.3d 496, 498-99 (5th Cir. 2000).

         III. ANALYSIS

         A. Probable Cause for Arrest

         Nerio brings his claim under both the Fourth and Fourteenth Amendments. “Where a particular Amendment provides an explicit textual source of constitutional protection against a particular sort of government behavior, that Amendment, not the more generalized notion of substantive due process, must be the guide for analyzing these claims.” Albright v. Oliver, 510 U.S. 266, 273 (1994) (internal punctuation deleted). A citizen has a right under the Fourth Amendment to be free from arrest unless the arrest is supported by either a properly issued arrest warrant or probable cause. Flores v. City of Palacios, 381 F.3d 391, 402 (5th Cir. 2004). “The Framers considered the matter of pretrial deprivations of liberty and drafted the Fourth Amendment to address it.” Albright, 510 U.S. at 274. Because the Fourth Amendment covers unlawful arrest, Nerio cannot also seek relief under the Fourteenth Amendment, and his Fourteenth Amendment claims should be dismissed. Cuadra v. Houston Indep. Sch. Dist., 626 F.3d 808, 814 (5th Cir. 2010). Thus the Court addresses this case under only the Fourth Amendment.

         “Under the Fourth Amendment, an arrest is reasonable if supported by probable cause.” Martinez-Aguero v. Gonzalez, 459 F.3d 618, 625 (5th Cir. 2006). Thus, in order to support a claim for an unlawful arrest, Nerio must plead sufficient facts to support that he was arrested without probable cause. See Burge v. Parish of St. Tammany, 187 F.3d 452, 482 (5th Cir. 1999). Undisputed evidence that an arrest was carried out under a facially valid arrest warrant satisfies the requirements of the Fourth Amendment and forecloses a § 1983 claim for false arrest. Baker v. McCollan, 443 U.S. 137, 139 (1979). The Fifth Circuit has explained that “where an arrest is made under authority of a properly issued warrant, the arrest is simply not a false arrest; such an arrest is not unconstitutional, and a complaint based on such an arrest is subject to dismissal for failure to state a claim.” Smith v. Gonzales, 670 F.2d 522, 526 (5th Cir. 1982).

         On the other hand, a “governmental official violates the Fourth Amendment when he deliberately or recklessly provides false, material information for use in an affidavit in support of a search [or arrest] warrant.” Hart v. O'Brien, 127 F.3d 424, 449 (5th Cir. 1997). In the context of § 1983 claims asserting Fourth Amendment violations, a governmental official is:

liable for swearing to false information in an affidavit in support of [an arrest] warrant, provided that: (1) the affiant knew the information was false or [acted with] reckless disregard for the truth; and (2) the warrant would ...

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