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Nerio v. Evans

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

June 19, 2019

CARLOS HENRY NERIO
v.
DEREK EVANS and AMY KING

          THE HONORABLE LEE YEAKEL, UNITED STATES DISTRICT JUDGE

          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 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 Local Rules.

         I. FACTUAL BACKGROUND

         Carlos 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.[1] 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.

         The 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 that.
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?
A. Yes.

         Dkt. 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.

         King 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.[2] 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.

         As it 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 familiar?
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 information.
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. ...

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