United States District Court, W.D. Texas, Austin Division
HONORABLE LEE YEAKEL, UNITED STATES DISTRICT JUDGE
REPORT AND RECOMMENDATION OF THE UNITED STATES
W. AUSTIN UNITED STATES MAGISTRATE JUDGE
the Court are Defendants Evans and King's Motion for
Summary Judgment (Dkt. No. 32); Plaintiff's Response
(Dkt. No. 37); and Defendants' Reply (Dkt. No. 40). 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
Henry Nerio brings this § 1983 case against Texas
Department of Public Safety Officers Derek Evans and Amy
King, in their individual capacities, alleging false arrest
and false imprisonment in violation of his Fourth Amendment
rights. The following undisputed facts come from
the summary judgment record, and are set forth in the light
most favorable to the Plaintiff. In 2015 and 2016, DPS was
investigating a methamphetamine distribution network headed
by Frank Lee Dones, Jr. The lead investigator, and the
primary decision maker regarding the investigation was King.
Dkt. No. 32-3 at 4; 32-4 at 7-9. As part of that
investigation, DPS conducted surveillance of Dones, used a
confidential informant to make a controlled methamphetamine
buy from him, and obtained court orders authorizing pen
registers and a Title III wiretap for two of Dones'
telephones. The pen register reflected that one of Dones'
frequent callers was a person using telephone number
xxx-xxxx-2438. Once the wiretap was in place, officers
listened in on, or read the texts of, communications between
Dones and the phone number ending in 2438. On May 4, 2016,
texts indicated that the person with the 2438 phone
number-one of whose texts starts with the statement
“This is Carlos”-was traveling to Dones'
house to purchase methamphetamine. A DPS surveillance team
was sent to Dones' house and observed a person exit his
vehicle, enter Dones' residence, return to his car
shortly thereafter and drive away.
summary judgment evidence is muddy at best regarding how the
investigators linked these events to the Plaintiff in this
case. King testified that at her direction a DPS analyst ran
an ACCURINT search of the 2438 telephone number, which
reflected that the number was subscribed to a person named
Carlos Nerio at an address on Ed Bluestein Blvd. Dkt. No.
32-3 at 9-10; 22-23. When officers investigated that address,
they determined it was the Cricket Wireless store where the
phone was purchased. Id. at 23. King also testified
that on the day that the drug buy took place (May 4, 2016),
and independently of her request for the search of the 2438
phone number, the surveillance team identified the vehicle
they witnessed drive to the Dones' residence to conduct
the drug buy as a silver Chevrolet pickup truck and obtained
its license plate number. Id. at 19-20. The plate
was run in a database, and returned to a Carlos Nerio who
resided on Tapo Lane. Id. at 31-32. What happened
next is opaque, at best. King stated in her deposition that
she herself did nothing to trace the owner of the Chevy
truck. She explained:
A: So the reason I didn't is because I-like I said, I
wasn't working surveillance or the wire room that day. It
just so happened my lieutenant was in the wire room, and he
was the one that had the license plate ran on the vehicle the
surveillance team called in. And so he was the one that did
Q. That's Lieutenant Leggett?
A. Yes. And I'm assuming because of the way it works is
he also asked communications for a driver's license photo
or a return.
Q. And that's when Lieutenant Leggett sent you the
personal information about Mr. Nerio?
No. 32-3 at 19. In other words, based on the license plate,
Leggett tracked down a driver's license and its related
information, and emailed that to King. The information King
received from Leggett contained a driver's license photo
of the Plaintiff, as well as other identifying information
for him, including an address on Wandering Way, not Tapo
Lane. Id. at 20-21. There is no evidence in the
record explaining how, using the license plate number called
in by the surveillance team-which the undisputed evidence
reflects tied to a Carlos Nerio residing on Tapo Lane-Leggett
sent King identifying information for a Carlos Nerio residing
on Wandering Way. Indeed, the record is undisputed that the
Carlos Nerio who actually was the suspect in this case lived
at the Tapo Lane address, and had a Texas driver's
license. Dkt. No. 37-1 at 1. Thus, a search based on the
license plate should have returned results for him, not the
Plaintiff. Why it did not is a mystery on which the summary
judgment evidence casts no light. Nevertheless, at an
unstated point after she received the driver's license
photo of the Plaintiff, King claims the surveillance officers
who were present during the drug buy reviewed that photo and
“were sure that was the person-that was Carlos
Nerio.” Dkt. No. 32-3 at 26; Dkt. No. 37-1 at 13.
and Evans concede that no one involved in the investigation
ever made a single surveillance visit to the Tapo Lane
address. Id. at 32; Dkt. No, 32-4 at 18. No. one
ever researched who owned that house, either. Dkt. No. 32-3
at 32. On the other hand, Evans and King both made numerous
surveillance runs by the Wandering Way house. Dkt. Nos. 32-3
at 12-13; 32-4 at 13; 17. Despite the numerous visits, they
never once saw the Chevy truck at the Wandering Way address,
though they did observe two different vehicles registered to
the Carlos Nerio-the Plaintiff-who lived there.
Id. Apparently neither King nor Evans
thought anything was odd about the fact that the Chevy truck
seen at the drug buy was never at the Wandering Way house
during the numerous surveillance visits made to that house.
happens, Carlos Nerio-the true subject of the officers'
investigation-and Carlos Henry Nerio- the person arrested-are
step-brothers, who, in addition to sharing the same name,
also share the same father (but not the same mother). But the
Carlos Nerio who lived on Tapo Lane is ten years older, three
inches shorter, and 50 pounds heavier than the Plaintiff.
Dkt. No. 37-1 at 1. More significantly, that Carlos Nerio has
no eyebrows or hair on his head, as a result of an explosion
at a methamphetamine lab, while the Carlos Nerio who is the
Plaintiff has eyebrows and a full head of dark hair.
Id. at 1, 3-4. On this very point, the summary
judgment evidence creates another significant mystery. Evans
testified that during the investigation he was shown the
photos in the summary judgment record of both the Plaintiff
and the “true” Carlos Nerio:
Q: Let me show you what's been provided to us as 137
[Dkt. No. 37-1 at 4] and ask you if that person looks
A: The picture looks familiar.
Q: I'm sorry?
A: The picture looks familiar.
Q: When have you seen the picture?
A: During the investigation or after the-all of this lawsuit
Q: And tell me how that came about.
A: At some point during the investigation after one of the
surveillances-probably a day or two after-maybe that
evening-I don't recall-I was showed two pictures of Mr.
Nerio, to my recollection, and it was those two pictures.
Well, that one I think is a newer picture. I think the
picture of him even at that time-
Q: On 106?
A: -was different. I think that was a newer deal photo. I
think that was after the arrest, to be honest with you. ...