United States District Court, S.D. Texas, Houston Division
MEMORANDUM AND OPINION
Rosenthal, Chief United States District Judge.
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.
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).
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.
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.
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.
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
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. (Id.). The driver complied with
Deputy Paige's request to produce his driver's
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.). 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).
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.).
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,
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). 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).
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).
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).
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
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).
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).
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
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.