United States District Court, E.D. Texas, Sherman Division
MEMORANDUM OPINION AND ORDER
L. MAZZANT, UNITED STATES DISTRICT JUDGE.
before the Court is Defendants' Motion for Summary
Judgment (Dkt. #82). The Court, having considered the
pleadings and relevant evidence, finds that the motion for
summary judgment should be granted in part.
Shane Perry is in a custody dispute with his ex-wife Kelli
Boles for their daughter (“N.L.P.”). On December
2, 2016, Plaintiff was scheduled to pick up N.L.P. from
school. Before the exchange occurred, N.L.P.
informed the superintendent Dr. Darin Jolly that she did not
want to go with her father. Anticipating that an issue might
arise, Dr. Jolly asked that a deputy be present on the school
grounds during the exchange, and Defendant Hopkins County
Deputy Kevin Lester responded to the request. Upon arriving
at the scene, Deputy Lester was informed that “N.L.P.
was afraid and did not want to go with [Plaintiff].”
(Dkt. #82-1 at p. 1). Dr. Jolly also notified Deputy Lester
that Plaintiff potentially had an active warrant, which
Deputy Lester thereafter contacted Dispatch and confirmed was
true. Deputy Lester informed Dr. Jolly that Plaintiff would
be arrested if Plaintiff entered the premises.
approximately 7:00 p.m., Plaintiff's girlfriend Lizett
Pugliese arrived to pick up N.L.P. from the school. Pugliese
was met by Deputy Lester, who informed her that N.L.P. did
not want to go to Plaintiff's house. Deputy Lester spoke
with Plaintiff by phone and told Plaintiff that “[he
was] not getting involved” with the ongoing issue.
(Dkt. #82 at p. 2). Deputy Lester then contacted Defendant
Hopkins County Attorney Dustanna Rabe and Defendant Sheriff
Lewis Tatum. County Attorney Rabe advised Deputy Lester that
“if NLP did not want to go with Plaintiff's
girlfriend, she could not be taken kicking and screaming,
” and Sheriff Tatum stated that “the child could
not be forced to stay or leave.” (Dkt. #82 at p. 4).
Deputy Lester informed Pugliese that he could not force
N.L.P. to leave with her and stayed with N.L.P. until Boles
returned to pick her up.
initially brought this action in the County Court at Law of
Hopkins County, Texas. On April 7, 2017, this action was
removed to the United States District Court for the Eastern
District of Texas (Dkt. #1). Plaintiff asserts state law
claims alleging gross negligence and tortious interference
with possession of a child and claims under 42 U.S.C. §
1983 against Deputy Lester, Sheriff Tatum, County Attorney
Rabe (“Individual Defendants”), and Defendant
Hopkins County (collectively, “Defendants”). On
September 24, 2018, Defendants filed the present Motion for
Summary Judgement (Dkt. #82). Plaintiff failed to file a
purpose of summary judgment is to isolate and dispose of
factually unsupported claims or defenses. Celotex Corp.
v. Catrett, 477 U.S. 317, 323-24 (1986). Summary
judgment is proper under Rule 56(a) of the Federal Rules of
Civil Procedure “if the movant shows that there is no
genuine dispute as to any material fact and the movant is
entitled to judgment as a matter of law.” Fed.R.Civ.P.
56(a). A dispute about a material fact is genuine when
“the evidence is such that a reasonable jury could
return a verdict for the nonmoving party.” Anderson
v. Liberty Lobby Inc., 477 U.S. 242, 248 (1986).
Substantive law identifies which facts are material.
Id. The trial court “must resolve all
reasonable doubts in favor of the party opposing the motion
for summary judgment.” Casey Enters., Inc. v. Am.
Hardware Mut. Ins. Co., 655 F.2d 598, 602 (5th Cir.
party seeking summary judgment bears the initial burden of
informing the court of its motion and identifying
“depositions, documents, electronically stored
information, affidavits or declarations, stipulations
(including those made for purposes of the motion only),
admissions, interrogatory answers, or other materials”
that demonstrate the absence of a genuine issue of material
fact. Fed.R.Civ.P. 56(c)(1)(A); Celotex, 477 U.S. at
323. If the movant bears the burden of proof on a claim or
defense for which it is moving for summary judgment, it must
come forward with evidence that establishes “beyond
peradventure all of the essential elements of the claim or
defense.” Fontenot v. Upjohn Co., 780 F.2d
1190, 1194 (5th Cir. 1986). Where the nonmovant bears the
burden of proof, the movant may discharge the burden by
showing that there is an absence of evidence to support the
nonmovant's case. Celotex, 477 U.S. at 325;
Byers v. Dall. Morning News, Inc., 209 F.3d 419, 424
(5th Cir. 2000). Once the movant has carried its burden, the
nonmovant must “respond to the motion for summary
judgment by setting forth particular facts indicating there
is a genuine issue for trial.” Byers, 209 F.3d
at 424 (citing Anderson, 477 U.S. at 248-49). A
nonmovant must present affirmative evidence to defeat a
properly supported motion for summary judgment.
Anderson, 477 U.S. at 257. Mere denials of material
facts, unsworn allegations, or arguments and assertions in
briefs or legal memoranda will not suffice to carry this
burden. Rather, the Court requires “significant
probative evidence” from the nonmovant to dismiss a
request for summary judgment. In re Mun. Bond Reporting
Antitrust Litig., 672 F.2d 436, 440 (5th Cir. 1982)
(quoting Ferguson v. Nat'l Broad. Co., 584 F.2d
111, 114 (5th Cir. 1978)). The Court must consider all of the
evidence but “refrain from making any credibility
determinations or weighing the evidence.” Turner v.
Baylor Richardson Med. Ctr., 476 F.3d 337, 343 (5th Cir.
move for summary judgment on Plaintiff's claims brought
under 42 U.S.C. § 1983 and under state law. Plaintiff
failed to respond to the present motion; therefore, the Court
the Court will consider the facts set forth in
Defendants' motion for summary as undisputed. The Court
will analyze first whether Defendants are entitled to summary
judgment on Plaintiff's § 1983 claims and then turn
to whether Defendants are entitled to such relief on
Plaintiff's state law claims.
Plaintiff's § 1983 Claims
asserts claims under § 1983, which provides:
Every person who, under color of any statute, ordinance,
regulation, custom, or usage, of any State or Territory or
the District of Columbia, subjects, or causes to be
subjected, any citizen of the United States or other person
within the jurisdiction thereof to the deprivation of any
rights, privileges, or immunities secured by the Constitution
and laws, shall be liable to the party injured in an action
at law, suit in equity, or other proper proceeding for
redress, except that in any action brought against a judicial
officer for an act or omission taken in such officer's
judicial capacity, injunctive relief shall not be granted
unless a declaratory decree was violated or declaratory
relief was unavailable.
42 U.S.C. § 1983 (2018).
alleges that Defendants violated his First, Fourth, and
Fourteenth Amendment rights. Defendants argues that (1)
Plaintiff cannot establish a valid claim under § 1983
and (2) Individual Defendants are entitled to qualified
Court addresses each argument in turn.
Municipal Liability Under § 1983
argue, and the Court agrees, that to the extent that
Plaintiff asserts § 1983 claims against Individual
Defendants in their official capacities, those claims should
be construed as claims against Hopkins County. See
Kentucky v. Graham, 473 U.S. 159, 165 (1985). Defendants
contend that Plaintiff failed to demonstrate that Hopkins