     Case: 12-20779       Document: 00512397976         Page: 1     Date Filed: 10/04/2013




             THE UNITED STATES COURT OF APPEALS
                   FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                   Fifth Circuit

                                                                            FILED
                                                                          October 4, 2013

                                     No. 12-20779                          Lyle W. Cayce
                                   Summary Calendar                             Clerk



GEORGE H. RUSSELL,

                                                  Plaintiff–Appellant
v.

WESLEY ALTOM, Individually, and in his official capacity; JASON RIDDLE;
ENTERGY TEXAS, INC.,

                                                  Defendants–Appellees



                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 4:10-CV-2511


Before SMITH, PRADO, and HIGGINSON, Circuit Judges.
PER CURIAM:*
       Plaintiff–Appellant George H. Russell appeals the district court’s
judgment in favor of Defendants–Appellees Wesley Altom, Jason Riddle, and
Entergy Texas, Inc. For the following reasons, we AFFIRM.




       *
         Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
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                                 Background
      In the wake of Hurricane Ike, Nirow, Inc., a company that specializes in
utility right-of-way maintenance, performed tree-trimming services under
contract with Entergy Texas, Inc. (“Entergy”), an electricity provider. On
September 14, 2008, George H. Russell observed Nirow employees trimming a
tree on his property and confronted the crew. The crew’s supervisor informed
Russell that Nirow was performing deferred maintenance in preparation for the
next hurricane, prompting Russell to complain that the crew should work to
restore power rather than perform preventative maintenance. Russell also
complained that the crew was using an improper trimming method that was
damaging the tree. Jason Riddle, an Entergy employee, then ordered the crew
to continue cutting the tree on Russell’s property instead of moving to an area
where downed tree limbs were causing power outages. When Russell refused to
leave, Riddle contacted the police, and Officers Ron Cleere and Wesley Altom
arrived within minutes. Cleere advised Russell not to interfere with the crew,
and then, believing the situation to be resolved, both officers left the scene.
      After leaving the scene, Altom traveled to the Walker County Emergency
Operations Center to discuss Russell’s conduct with Walker County District
Attorney David Weeks. The two discussed whether Russell had committed a
crime, and Weeks advised that Russell may have violated an emergency
management plan order devised for the hurricane recovery effort. Altom and
Cleere then discussed the possibility of arresting Russell but took no action.
      The next day, the same Nirow crew was trimming trees near another of
Russell’s properties. Russell came to the area and began photographing the
crew’s work, which prompted Riddle to again call the police. Cleere and Altom
responded, and one of the crew members advised Cleere that the crew warned
Russell to leave because he was in a dangerous area but that Russell ignored the
warning. Instead, the crew member stated, Russell moved closer, causing the

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crew to stop working while Russell remained in the area. Cleere arrested
Russell for violating the emergency management plan order and had him
transported to the county jail. Altom then consulted with Weeks to determine
the proper charge against Russell.               Weeks contacted the Texas Attorney
General’s Office, which suggested charging Russell with interfering with public
duties in violation of Texas Penal Code section 38.15.
       In November 2008, Weeks presented Russell’s case to a grand jury. The
grand jury ultimately decided to upgrade the offense from misdemeanor status
to felony status and returned a true bill. The indictment contained six felony
counts constituting three separate violations of two different statutes: Texas
Utilities Code section 186.004 and Texas Revised Civil Statute article 1446a,
section 5.1 Three months later, the indictment was dismissed.
       On July 14, 2010, Russell filed this lawsuit in the Southern District of
Texas, alleging various constitutional claims through 42 U.S.C. § 1983, as well
as Texas state law claims of trespass and negligence. For the state law claims,
Russell alleged that Nirow, under the direction of Riddle and Entergy,
trespassed onto his land beyond any lawful easement right they may have
possessed. Russell alleged that the tree trimmed by the crew was located eight
feet beyond the utility easement granted by the city and had no limb within
three feet of the power line. Russell also alleged that Nirow, Riddle, and
Entergy were “negligent and/or reckless” in trimming his trees, causing
unnecessary injury to his property. For the constitutional claims, Russell
alleged that Altom violated his rights under the First, Fourth, and Fourteenth
Amendments. Specifically, Russell alleged that his arrest was in retaliation for

       1
          Texas Utilities Code section 186.004 governs unlawful picketing, threats, or
intimidation intended to disrupt the service of a public utility. Section 5 of article 1446a
provides that any person “who interferes with, or commits any act of sabotage affecting any
machinery, equipment, or facilities of any . . . utility for the purpose of disrupting the service
provided by such utility, or for the purpose of preventing the maintenance of such service,
shall be guilty of a felony.” Tex. Rev. Civ. Stat. art. 1446a, § 5.

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his decision to exercise his right to freedom of speech under the First
Amendment, that his arrest was unlawful under the Fourth Amendment, and
that he was deprived of “his procedural and substantive due process rights and
his liberty interests under the Fourteenth Amendment.”
      The district court referred the matter to a magistrate judge, who first
addressed the motions to dismiss filed by Nirow, Riddle, and Entergy. Finding
that Russell had sufficiently alleged only a trespass claim against Nirow, the
magistrate judge recommended dismissing the trespass action brought against
Riddle and Entergy and the negligence action brought against all three. Next,
the magistrate judge addressed Altom’s motion for summary judgment on
Russell’s First and Fourth Amendment claims. Concluding that the grand jury’s
finding precluded both of these claims, the magistrate judge recommended
granting Altom summary judgment. Finally, the magistrate judge addressed
Altom’s motion to dismiss Russell’s substantive and procedural due process
claims. Finding that Russell’s allegations provided no support for the conclusion
that Altom was responsible for depriving Russell of any due process, the
magistrate judge recommended granting the motion to dismiss. The district
court adopted each of the magistrate judge’s recommendations, dismissing the
due process and state law claims and granting Altom summary judgment on
Russell’s First and Fourth Amendment claims. The district court declined to
exercise supplemental jurisdiction over the trespass action against Nirow—the
only remaining claim—and remanded the case to state court. Russell timely
appealed.
                                  Discussion
      “We review de novo a district court’s dismissal under Rule 12(b)(6),
accepting all well-pleaded facts as true and viewing those facts in the light most
favorable to the plaintiff.” Sullivan v. Leor Energy, LLC, 600 F.3d 542, 546 (5th
Cir. 2010). We also review de novo the grant of summary judgment, applying

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the same standards as the district court. Dillon v. Rogers, 596 F.3d 260, 266
(5th Cir. 2010).       Summary judgment is appropriate if the moving party
establishes that there are no genuine issues of material fact and that the moving
party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a).
       We first address Russell’s argument that the district court erred in
dismissing his trespass and negligence claims against Riddle and Entergy.2
“Trespass to real property is an unauthorized entry upon the land of another,
and may occur when one enters—or causes something to enter—another’s
property.” Barnes v. Mathis, 353 S.W.3d 760, 764 (Tex. 2011). This includes
when one “intentionally causes a third person to enter land in the possession of
another.” Wilen v. Falkenstein, 191 S.W.3d 791, 798 (Tex. App.—Fort Worth
2006, pet. denied). “Thus, if the actor has commanded or requested a third
person to enter land in the possession of another, the actor is responsible for the
third person’s entry, if it be a trespass.” Id. (quoting Restatement (Second) of
Torts § 158 cmt. j (1977)).
       Significantly, Russell does not allege that Riddle or Entergy ever entered
upon his property without his consent. Instead, he argues that Nirow employees
entered upon his land under the direction of Riddle and Entergy. Thus, to state
a claim, Russell must have alleged sufficient facts to establish that Riddle or
Entergy intentionally caused the Nirow employees to enter Russell’s land. He
failed to satisfy this burden.
       The alleged trespass occurred when Nirow employees trimmed a tree that
was eight feet beyond the utility easement with no limb within three feet of the
power line. To support his claim against Riddle and Entergy, Russell alleged
that Riddle, acting under the direction of Entergy, was the on-site supervisor
who instructed the employees to remain at Russell’s property in response to
       2
         The state law claims Russell asserted against Nirow are not before us. Russell has
not challenged the district court’s decision to dismiss the negligence claim against Nirow, and
the remanded trespass claim is pending in state court.

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Russell’s request that they move to another location. No facts were alleged,
however, that either Riddle or Entergy intended Nirow’s trimming to occur
beyond the utility easement. The mere fact that Riddle chose the location of the
trimming does not lead to an inference of intent to cause Nirow’s employees to
enter upon Russell’s property without his consent. As a result, the district court
properly dismissed the trespass claim against Riddle and Entergy.
       The same is true for the negligence claim. Russell’s negligence claim was
based on the crew’s use of an “incorrect method of trimming trees.” He never
alleged, however, that Riddle or Entergy had any control over the Nirow
employees’ preferred method of trimming. As a result, Russell failed to allege
sufficient facts to establish that Riddle or Entergy should be held accountable
for their subcontractor’s actions, and the district court properly dismissed the
negligence action.
       We next address Russell’s First and Fourth Amendment claims.3 Altom
asserted qualified immunity in response to these claims. To assess qualified
immunity, “we decide (1) whether the facts that the plaintiff has alleged make
out a violation of a constitutional right; and (2) whether the right at issue was
clearly established at the time of the defendant’s alleged misconduct.” Ramirez
v. Martinez, 716 F.3d 369, 375 (5th Cir. 2013) (internal quotation marks
omitted). Because Russell has failed to establish a constitutional violation for
either claim, we do not reach the issue of whether the right at issue was clearly
established.
       Both Russell’s First Amendment claim and his Fourth Amendment claim
require an absence of probable cause to support the arrest. See, e.g., Mesa v.
Prejean, 543 F.3d 264, 273 (5th Cir. 2008) (“If [probable cause] exists, any
argument that the arrestee’s speech as opposed to her criminal conduct was the

       3
        Russell does not challenge the dismissal of his substantive and procedural due process
claims brought under the Fourteenth Amendment.

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motivation for her arrest must fail, no matter how clearly that speech may be
protected by the First Amendment.”); Flores v. City of Palacios, 381 F.3d 391,
402 (5th Cir. 2004) (“An arrest is unlawful unless it is supported by probable
cause.”). “Probable cause exists when the totality of facts and circumstances
within a police officer’s knowledge at the moment of arrest are sufficient for a
reasonable person to conclude that the suspect had committed or was
committing an offense.” Ramirez, 716 F.3d at 375 (emphasis omitted). The
probable cause inquiry focuses on the validity of the arrest, not the validity of
each individual charge made during the course of the arrest. See Price v. Roark,
256 F.3d 364, 369 (5th Cir. 2001); Wells v. Bonner, 45 F.3d 90, 95 (5th Cir. 1995).
      A grand jury indictment is sufficient to establish probable cause. See
Gerstein v. Pugh, 420 U.S. 103, 117 n.19 (1975). When the facts supporting an
arrest “are placed before an independent intermediary such as a magistrate or
grand jury, the intermediary’s decision breaks the chain of causation for false
arrest, insulating the initiating party.” Cuadra v. Hous. Indep. Sch. Dist., 626
F.3d 808, 813 (5th Cir. 2010). The chain of causation remains intact, however,
if “it can be shown that the deliberations of that intermediary were in some way
tainted by the actions of the defendant.” Hand v. Gary, 838 F.2d 1420, 1428 (5th
Cir. 1988). In other words, “the chain of causation is broken only where all the
facts are presented to the grand jury, where the malicious motive of the law
enforcement officials does not lead them to withhold any relevant information
from the independent intermediary....” Id. at 1427–28.
      Because the grand jury indicted Russell, he must show that Altom tainted
the grand jury’s deliberations in some way. There is no evidence, however, that
Altom played any role in the indictment process. Instead, Russell alleges that
District Attorney Weeks acted as Altom’s agent and misled the grand jury in
three ways: (1) by being involved in the arrest decision such that he was no
longer an impartial intermediary, (2) by presenting three charges based on

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violations of a provision in the Texas Utilities Code that contains no criminal
penalties of any kind, and (3) by omitting vital facts concerning the elements of
the other three charges. This claim fails at the outset as there is no evidence
that Altom exercised any control or influence over Weeks. The simple fact that
an officer makes an arrest does not transform the attorney prosecuting that
arrest into the officer’s agent. But even so, the flaws Russell identifies are
insufficient to establish the taint necessary to vitiate a grand jury’s findings.
      First, prosecutors are often involved in charging decisions, and they
themselves are not the “impartial intermediary” capable of insulating an officer
from liability—that is the grand jury to whom the prosecutor, an inherently
biased party, presents the information. Second, the improper inclusion of a
statute with no criminal penalties does nothing to undercut the other half of the
indictment, which was based on a clearly applicable statute that carries criminal
penalties. The facts supporting the charge do not change depending on the
statute presented. Finally, there is no support for the contention that Weeks
omitted vital facts. The grand jury had access to the police reports, heard
Sergeant Cleere’s testimony of the events, and were given an opportunity to
request the testimony of any other witness. Russell disputes the version of the
facts presented as well as the prosecutor’s failure to present potentially
exculpatory evidence. But “[i]t is axiomatic that the grand jury sits not to
determine guilt or innocence, but to assess whether there is adequate basis for
bringing a criminal charge.      That has always been so; and to make the
assessment it has always been thought sufficient to hear only the prosecutor’s
side.” United States v. Williams, 504 U.S. 36, 51 (1992) (citation omitted). As
a result, the district court did not err in its finding that probable cause
supported the arrest. Because the grand jury’s indictment was sufficient to
establish probable cause, there is no need to address Russell’s final argument
regarding the lack of probable cause to support the initial charge of interference

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with public duties. See Wells, 45 F.3d at 95 (“If there was probable cause for any
of the charges made . . . then the arrest was supported by probable cause . . . .”).
                                   Conclusion
      For the foregoing reasons, the judgment of the district court is
AFFIRMED.




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