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Forbes v. Harris County

United States District Court, S.D. Texas, Houston Division

May 13, 2019

JONATHAN FORBES, Plaintiff,
v.
HARRIS COUNTY, TEXAS, and LUCAS PAIGE, Defendants.

          MEMORANDUM AND OPINION

          Lee H. Rosenthal, Chief United States District Judge.

         Jonathan Forbes sued Harris County, Texas and Lucas Paige, a Harris County Precinct 4 Deputy Constable, under 42 U.S.C. § 1983. Forbes alleges that Deputy Paige arrested him for driving while intoxicated, without probable cause, and that Deputy Paige made misrepresentations to an assistant district attorney and a magistrate judge to get a blood-draw warrant, resulting in a DWI charge against Forbes. Forbes alleges that Harris County had a policy or custom of making DWI arrests without probable cause and was deliberately indifferent to the need for additional or different police training on investigating suspected intoxicated drivers.

         Harris County and Deputy Paige have moved for summary judgment. They argue that the undisputed record evidence shows that, as a matter of law, Deputy Paige had probable cause to arrest Forbes for driving while intoxicated; Forbes has not identified a Harris County policymaker; and Forbes has not pointed to evidence supporting a reasonable inference that there was a pattern of similar prior constitutional violations necessary to show a municipal custom or deliberate indifference. Forbes responded, and Harris County and Deputy Paige replied. (Docket Entry Nos. 28, 46, 48).

         Section 1983 requires a plaintiff to show a constitutional or federal-law violation, and both qualified immunity and municipal liability present high bars. See Arenas v. Calhoun, No. 18-50194, 2019 WL 1870686, at *3 (5th Cir. 2019); Hicks-Fields v. Harris Cty., 860 F.3d 803, 808 (5th Cir. 2017); Wyatt v. Fletcher, 718 F.3d 496, 503 (5th Cir. 2013); Gobert v. Caldwell, 463 F.3d 339, 346 (5th Cir. 2006); Piotrowski v. City of Hous., 237 F.3d 567, 579-80 (5th Cir. 2001). To survive summary judgment, Forbes must show that a reasonable jury could find for him at trial based on the record evidence. He must point to evidence supporting a reasonable inference that Deputy Paige violated the Constitution or federal law and that the evidence clears the hurdles of qualified immunity and municipal liability.

         After a careful review of the record evidence, motion, response, reply, and the applicable law, the court finds that, based on the undisputed record evidence, Deputy Paige had probable cause to arrest Forbes for DWI and that the magistrate judge had probable cause to issue the blood-draw warrant, regardless of Deputy Paige's alleged misrepresentation in his warrant application affidavit. Summary judgment is granted for Harris County and Deputy Paige, and an order of final judgment is separately entered. The reasons are explained in detail below.

         I. Background

         On July 25, 2015, around 2:30 a.m., Deputy Paige was working a shift on Precinct 4's DWI task force, patrolling the Hardy Toll Road in Houston, Texas, when he saw a “brand new Corvette” in the far-right lane. (Docket Entry No. 46-10 at 8). Deputy Paige became concerned because the Corvette was “swerving back and forth inside [its] lane.” (Id. at 11). A dashboard camera on Deputy Paige's patrol car captured what happened next.

         Deputy Paige pulled closer to the Corvette from the middle lane. He stated that he wanted to “observe” and to “get a better view” of the driver. (Id. at 8-9). Both Deputy Paige and the Corvette were traveling about 60 miles an hour. (Docket Entry No. 28, Ex. 5, at 00:06). The posted speed limit was 65 miles per hour. (Id. at 00:23-00:26). As Deputy Paige approached the Corvette, it “downshift[ed]” and sped away. (Docket Entry No. 46-10 at 9; see also Docket Entry No. 28, Ex. 5, at 00:18-00:40). Deputy Paige pursued, turning on his lights and siren. (Docket Entry No. 28, Ex. 5, at 00:22-00:52). He had to accelerate to 109 miles an hour to keep up with the Corvette, which finally pulled over and stopped on the highway's right shoulder. (Id. at 00:30- 01:08).

         Deputy Paige got out of his patrol car and approached the driver's side. (Id. at 01:20- 01:40). While he was walking toward the car, Deputy Paige unholstered his handgun and ordered the driver to turn off the ignition. (Id.). The driver promptly did so, and Deputy Paige holstered his weapon.[1] (Id.). The driver complied with Deputy Paige's request to produce his driver's license. (Id.).

         Deputy Paige asked the driver, “how are you doing tonight?” (Id.). The driver responded, “good, how are you?” (Id.). Deputy Paige said, “doin' alright, ” then asked, “what was that about, ” referring to the speeding. (Id. at 01:41-01:50). The driver responded with one word: “dumbass.” (Id.).[2] Deputy Paige said, “Ok.” (Id.). Deputy Paige testified that the driver's words were slurred, he had “the odor of alcoholic beverage, ” and his eyes were “red” and “glossy.” (Docket Entry No. 46-10 at 11).

         Deputy Paige asked the driver where he was coming from. (Docket Entry No. 28, Ex. 5, at 01:45-02:14). The driver responded, “Houston.” (Id.). Deputy Paige then asked where he had been in Houston, and the driver said that he had eaten dinner at a restaurant. (Id.). Deputy Paige expressed surprise and asked the driver if he had been eating dinner well after midnight. (Id.). The driver said, “pretty much, yeah.” (Id.).

         Deputy Paige asked the driver to get out of the Corvette and stand near the trunk. (Id. at 02:14-03:00). Deputy Paige patted him down to check for weapons, found none, and then asked the driver “how much [he] had to drink tonight?” (Id.). The driver looked at Deputy Paige and put out his hands as if to be handcuffed. (Id.). Deputy Paige asked, “that much, ” and “you're not gonna say anything?” (Id.). The driver said, “no sir.” (Id. at 02:43-02:55). Deputy Paige took this as “a refusal to answer [his] questions” or cooperate. (Docket Entry No. 46-10 at 14, 24). Deputy Paige handcuffed the driver, patted down his pockets a second time, and put him in the patrol car. (Docket Entry No. 28, Ex. 5, at 02:45-03:40).

         Deputy Paige then took an inventory of the Corvette and the driver's wallet. (Id. at 03:50- 08:10, 10:20-13:00). He found a receipt in the wallet showing that the driver had been at a strip club at 2:09 a.m. that night and had purchased 3 waters, 8 vodka drinks, 1 beer, and $1, 875 in dances. (Docket Entry No. 28-2 at 1; Docket Entry No. 28, Ex. 5, at 11:35-12:30).[3] The Corvette was towed, and Deputy Paige took the driver, Jonathan Forbes, to the Houston Police Department. (Docket Entry No. 28, Ex. 5, at 07:55-09:20; Docket Entry No. 46-10 at 11).

         When Deputy Paige and Forbes arrived at the Department, Deputy Paige read Forbes a form stating that he was under arrest for DWI and asking for a breath or blood sample. (Docket Entry No. 28, Ex. 5, at 49:35-53:30). Forbes refused to give a sample. (Id.; Docket Entry No. 28-7 at 1). Deputy Paige and an assistant district attorney went before a magistrate judge to get a warrant to draw a blood sample. (Docket Entry No. 46-10 at 12-13, 15). Deputy Paige reviewed and signed a warrant affidavit stating that:

[O]n July 25, 2015[, ] at approximately 2:35AM, [I] was on patrol on 20300 Hardy Toll Rd., a public place and public road located in Houston, Harris County, Texas when [I] observed a white 2015 Chevrolet Corvette motor vehicle weaving inside of its traffic lane. As [I] got closer to the Corvette, [I] observed it to rapidly accelerate away from [me] so [I] conducted a traffic stop, made contact with the driver of the Corvette and identified him by his Texas Driver's License . . . as Jonathan Robert Forbes.
I came into contact with [Forbes] and noticed him to have slurred speech, glossy red eyes and a mild odor of an alcoholic beverage emitting from his breath and person.
I asked [Forbes] to perform some field sobriety tests to determine [his] level of intoxication, including the Horizontal Gaze Nystagmus Test, the One Leg Stand Test[, ] and the Walk and Turn Test. . . .
[Forbes] refused to perform the Horizontal Gaze Nystagmus Test, the One Leg Stand Test[, ] and the Walk and Turn Test.
Therefore, I placed [Forbes] under arrest and transported [him] to the police station. At the station, [I] offered [Forbes] an opportunity to provide a sample of [his] breath and/or blood and [Forbes] declined to provide a sample. This is a violation of the Texas Implied Consent law and is also an indication to me that [Forbes] is attempting to hide evidence of [his] level of intoxication.

(Docket Entry No. 28-9 at 1-2).

         The magistrate judge issued a warrant for a blood sample from Forbes. (Docket Entry No. 46-4). Forbes's blood was drawn around 4:00 a.m., an hour and a half after the traffic stop. (Docket Entry No. 28-3). Forbes's blood-alcohol content was 0.090, exceeding the legal limit of 0.080. (Id. at 2). Forbes was kept in jail overnight, until his wife posted bond the next morning. (Docket Entry No. 28-5 at 17). The DWI charge against Forbes was eventually dropped, with no reason. (Id. at 22-23).

         In July 2017, Forbes sued Deputy Paige and Harris County in federal court, asserting violations of the Fourth, Fifth, and Fourteenth Amendments under 42 U.S.C. § 1983. (Docket Entry No. 1 at 7-8). Forbes alleged that Deputy Paige arrested Forbes without probable cause and misrepresented that “Forbes had glossy red eyes, slurred speech, a mild odor of alcohol, that he placed his hands out in front of him to be arrested, and that he refused to do any testing.” (Id. at 3-4). Forbes alleged that, based on “these falsehoods, ” the magistrate judge issued the “blood draw warrant” and Forbes was charged with a misdemeanor DWI offense. (Id. at 4).

         After Harris County moved for judgment on the pleadings, Forbes moved for leave to amend, and the court granted Forbes leave. (Docket Entry Nos. 23-24, 26).

         Harris County and Deputy Paige answered the amended complaint and moved for summary judgment. (Docket Entry No. 27-28). Their summary judgment motion contends that the undisputed record evidence shows that Deputy Paige had probable cause to arrest Forbes for DWI; Forbes has not identified evidence supporting a reasonable inference that Harris County had a policy or custom of making DWI arrests without probable cause; Forbes has not identified a proper Harris County policymaker; and Forbes has not identified evidence supporting a reasonable inference that Harris County was deliberately indifferent to a need for additional or different training. (Docket Entry No. 28 at 19-30). Harris County and Deputy Paige attached a number of documents to their motion, including a video recording of the traffic stop, the strip-club receipt, Forbes's blood-test results, two expert reports, Forbes's deposition, Forbes's refusal to give a blood or breath sample, and Deputy Paige's warrant application affidavit. (Docket Entry Nos. 28-1-28-10). Harris County and Deputy Paige supplemented their motion with an affidavit by Harold Herrin, the Precinct 4 Captain, stating that there was a single complaint of wrongful arrest for DWI between December 2012 and December 2017. (Docket Entry No. 40-2).

         Forbes responded and submitted documents, including the traffic-stop video recording; the district-attorney intake documents for Forbes's arrest; the warrant to draw Forbes's blood; Deputy Paige's report and Forbes's refusal to give a breath or blood sample; arrest reports from a website called The Police News; an expert report; a declaration from Forbes; and Deputy Paige's deposition. (Docket Entry Nos. 46-1-46-10). Forbes argues that without Deputy Paige's “lies . . . there would not have been the very intrusive blood draw” that violated the Fourth and Fourteenth Amendments. (Docket Entry No. 46 at 10). Forbes contends that the record evidence supports a reasonable inference that Deputy Paige lacked probable cause to make the arrest, “supplied false information and omitted exculpatory information” in his warrant application affidavit; Deputy Paige's misrepresentations establish a malicious prosecution claim under the Fourteenth Amendment; Ron Hickman and Mark Herman of Precinct 4 were the relevant policymakers; Deputy Paige lacked “field training in DWI stops”; 21 of Forbes's “DWI cases have been dismissed”; and Harris County ratified Deputy Paige's conduct by failing to discipline him after Forbes filed his complaint. (Id. at 14-19). Forbes also argues that Harris County's and Deputy Paige's summary judgment evidence does not come from “disinterested witnesses.” (Id. at 13 (emphasis omitted)).[4]

         Harris County and Forbes replied. (Docket Entry No. 48). They object to “The Police News” articles as hearsay and to Forbes's declaration as irrelevant and conclusory. (Id. at 1-2). Harris County and Deputy Paige argue that Deputy Paige had probable cause for the arrest and that the blood-draw warrant was supported by probable cause; Forbes's amended complaint did not assert a malicious-prosecution claim, which is not cognizable under the Fourth Amendment; Harris County did not ratify Deputy Paige's conduct; and Forbes has not presented a pattern of similar incidents to support a reasonable inference of a Harris County custom or deliberate indifference to a need for different or additional training. (Id. at 2-9). The parties' arguments are examined below.

         II. ...


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