     Case: 11-10805       Document: 00512095313         Page: 1     Date Filed: 12/27/2012




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

                                                                            FILED
                                                                        December 27, 2012

                                       No. 11-10805                        Lyle W. Cayce
                                                                                Clerk

SUSAN CRAIG,

                                                  Plaintiff – Appellant
v.

DALLAS AREA RAPID TRANSIT AUTHORITY; GEORGE RUIZ; ARTHUR
WILDER; KIM OSWALD; JAMES SPILLER,


                                                  Defendants – Appellees



                   Appeal from the United States District Court
                        for the Northern District of Texas
                              USDC No. 3:10-CV-323


Before JOLLY, HIGGINBOTHAM, and DENNIS,* Circuit Judges.
PER CURIAM:**
       Susan Craig, the plaintiff-appellant, was employed as a Police Field
Training Officer by Dallas Area Rapid Transit Authority (DART) until she was
arrested and indicted for evidence tampering: first, for hitting herself in the face


       *
        Dennis, Circuit Judge, joins the majority on all issues but one, disagreeing with the
majority’s conclusion that summary judgment was warranted on the independent-
intermediary, broken-chain issue.
       **
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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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                                          No. 11-10805

allegedly to fake personal injuries after a physical altercation with a DART
customer and, second, for faxing a supposedly exculpatory letter to DART during
the agency’s criminal investigation of her. The case ultimately proceeded to
trial, where Craig was acquitted.
          After her acquittal, Craig filed this civil suit in federal district court
alleging that DART, as well as its employees, Officers George Ruiz, Arthur
Wilder, Kim Oswald, and James Spiller, violated her state and federal rights by
carrying out her false arrest, depriving her of the Fourteenth Amendment right
to a fair trial, and conducting a malicious, baseless prosecution. On summary
judgment, the magistrate judge1 dismissed Craig’s complaint and entered
judgment for DART; we AFFIRM.
                                                 I.
          We begin by laying out the factual background. On July 2, 2007, Susan
Craig received a three-month-long assignment to DART light rail train patrol,
a position that required her to check DART passengers’ rail cards and assure
that customers had paid for their trips. Craig resented this assignment, saying
that she was going to “arrest any[one] she could so that patrol was tied up” and
threatening that “[DART] is going to wish they never put me on trains.” Around
11:30 a.m. that day, at the Cedars DART station, Craig approached passenger
Markeith Blacknall. Despite the fact that Blacknall was not breaking any rules,
Craig removed him from the train and attempted to issue him a citation. When
Craig tried to make Blacknall sign the citation, a conflict broke out. Cherish
Fitz, a passenger who was accompanying Blacknall, accosted Craig and allegedly
kicked her in the face, giving Craig a black eye. Another female passenger who
was traveling with Fitz and Blacknall then joined the altercation. The conflict
escalated.

          1
              The parties consented to trial before a magistrate judge pursuant to 28 U.S.C. §
636(c).

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                                      No. 11-10805

       Craig called for assistance from other DART officers. After Fitz and her
friend were arrested, Craig filled out an affidavit so that Fitz could be charged
with assault. At the scene, Officer Wilder observed Craig slightly bend her head
and curl her fingers inward, exposing the palm of her hand. Then, according to
Officer Wilder, Craig struck herself “hard,” with enough force to move her head
slightly upward, in the area of her black eye. Craig’s account was somewhat
different from Wilder’s; she claims she “tried to alleviate the pain [of her black
eye] by rubbing and hitting the area where she had been kicked.” She offers no
further explanation as to how hitting herself in the wounded area would relieve
her pain. That day, Wilder filled out an affidavit stating that he witnessed Craig
hitting herself in the face
       After considering Craig’s behavior at the scene, along with her behavior
earlier that same day,2 DART immediately put Craig on involuntary,
administrative leave. Officer Spiller, DART’s chief officer, ordered Officer Ruiz
to conduct a criminal investigation of Craig for evidence tampering. While Craig
was on administrative leave, DART’s Media Relations Department received a
faxed letter signed by a child named “G. Peña.” The typewritten, strangely-
worded letter relates the details of Craig’s confrontation with Fitz, allegedly as
observed by G. Peña’s non-English-speaking parents. Investigators were able
to trace the fax back to a local Office Depot store. After questioning the store’s
clerk, officers suspected that Craig, rather than the unidentified “G. Peña,” had
sent the fax. They concluded that the letter had been forged by Craig.
       During DART’s investigation, Rebecca Williams, a DART human resources
officer, attended a meeting with Officer Spiller.             According to Williams’s



       2
         Earlier on July 2, Craig arrested a person with a valid fare card and student ID
without probable cause and made demeaning and sexually explicit comments to him. Later
in the day and before the events in question, Craig made similar abusive comments to another
passenger.

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affidavit, Officer Spiller confided in Williams “that he was going to ruin [Craig’s]
career, and that he wanted to get her convicted on the criminal charge of
falsifying an injury report.” Spiller further revealed to Williams that “he had an
officer who would say whatever he (Spiller) needed him to say regarding the
incident of July 7, 2007” and that “George Ruiz is working to get a conviction.”
       After DART’s investigation and Craig’s subsequent discharge in November
2007, Officer Spiller referred the matter to the Dallas District Attorney’s office.
The District Attorney’s office presented the case to a grand jury, which indicted
Craig. The case went to trial on a single charge of tampering with evidence, and
the jury acquitted Craig.3
       Following her acquittal, Craig filed a federal civil suit, under 42 U.S.C. §
1983, against DART and Officers Oswald,4 Ruiz, Spiller, and Wilder. In that
suit, which now forms the basis for this appeal, she asserted violations of her
civil rights under the Fourth and Fourteenth Amendments and Texas law,
alleging that defendants arrested her without probable cause, withheld
exculpatory information, and committed the tort of malicious prosecution. The
magistrate judge found that Craig had put forth no evidence of any
constitutional or state law violation and dismissed all of Craig’s claims on
summary judgment.           Craig filed a motion for a new trial or to alter the
judgment, which was also denied.
       Craig now appeals arguing that the district court erred by granting
summary judgment in defendants’ favor.


       3
          After the jury acquitted Craig, she filed a Petition for Expunction, requesting that all
files related to her criminal trial be destroyed. A Dallas County District Court granted the
petition. Because the relevant documents no longer exist, certain details regarding the timing
and nature of Craig’s arrest and trial cannot be provided by this court.
       4
         Officer Oswald, who is named as a defendant in this case, was in charge of frisking
Fitz and her friend and transporting them to jail. This appears to be the full extent of Officer
Oswald’s involvement in Craig’s case.

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                                        No. 11-10805

                                               II.
       We review a district court’s grant of summary judgment de novo.
Performance Autoplex II Ltd. v. Mid-Continent Cas. Co., 322 F.3d 847, 853 (5th
Cir. 2003). Summary judgment is appropriate if there is no genuine dispute as
to any material fact in the case and the moving party is entitled to judgment as
a matter of law. FED. R. CIV. P. 56(a). A “pretended issue, one that no
substantial evidence can be offered to maintain, is not genuine” and therefore
must be dismissed. S. Distrib. Co. v. Southdown, Inc., 574 F.2d 824, 826 (5th
Cir. 1978) (internal quotation marks omitted). Here, because Craig has offered
no evidence of violations of her Fourth and Fourteenth Amendment rights and
cannot, under Texas law, sue the named governmental entities, the district court
did not err when it dismissed her case
                                              III.
       First, we consider Craig’s Fourth Amendment claim in which she alleges
that her arrest represented an unconstitutional seizure of her person. The
primary question here is whether the police officers involved in the
prosecution had probable cause to believe Craig had committed a criminal act
by striking herself after the altercation with Fitz. If there was probable cause,
DART’s arrest and subsequent indictment of Craig were not unreasonable, and
there was no constitutional violation.5 See Carroll v. United States, 267 U.S.



       5
          We are cognizant of the relevance of the doctrine of qualified immunity. Normally,
qualified immunity protects government officials from liability for civil damages unless a
plaintiff pleads facts showing that the official violated a statutory or constitutional right that
was clearly established at the time of the challenged conduct. Ashcroft v. al-Kidd, 131 S.Ct.
2074, 2080 (2011). As set forth below, the DART officials named as defendants in this case are
not subject to liability because there has been no constitutional violation of Craig’s Fourth
Amendment rights. The appropriateness of qualified immunity is further confirmed by
evidence in this case suggesting that the DART defendants were neither affiants nor the
individuals who prepared or were responsible for the warrant for Craig’s arrest. See Michalik
v. Hermann, 422 F.3d 252, 261 (5th Cir. 2005) (stating the court’s unwillingness to extend §
1983 liability to such persons).

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132, 149 (1925) (“[T]he true rule is that if the search and seizure . . . are made
upon probable cause . . . the search and seizure are valid.”).
      Even if, however, we disregard Craig’s facial self-abuse and the “G. Peña”
letter and assume, for the purpose of this opinion, that no probable cause existed
for Craig’s arrest, her Fourth Amendment claim ultimately fails.                 An
independent intermediary – the grand jury – considered the criminal charges
and returned an indictment against Craig. Precedent clearly establishes that,
“if 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.” Taylor v. Gregg, 36
F.3d 453, 456 (5th Cir. 1994), overruled on other grounds by Castellano v.
Fragozo, 352 F.3d 939, 949 (5th Cir. 2003) (en banc). For our purposes, this
means that “even an officer [in Craig’s case] who acted with malice in procuring
the warrant or the indictment will not be liable if the facts supporting the
warrant or indictment are put before an impartial intermediary such as a
magistrate or a grand jury.” Hand v. Gary, 838 F.2d 1420, 1427 (5th Cir. 1988)
(internal quotation marks omitted).
      Craig argues that the grand jury’s deliberations were tainted by Officer
Spiller’s vendetta against her; however, her argument is based only on
conjecture and, thus, does not preclude summary judgment. See Duffie v. U.S.,
600 F.3d 362, 371 (5th Cir. 2010) (stating “[T]he nonmoving party cannot
survive a summary judgment motion by resting on the mere allegations of its
pleadings.”); Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994) (en
banc) (stating that a nonmovant’s burden in a summary judgment motion “is
not satisfied . . . by ‘conclusory allegations,’ by ‘unsubstantiated assertions,’ or
by only a ‘scintilla of evidence.’”). For Craig, a mere allegation of taint, without
more, is insufficient. See Taylor, 36 F.3d at 457 (emphasis added). In Hand, we
emphasized that “[a]n independent intermediary breaks the chain of causation

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                                  No. 11-10805
unless it can be shown that the deliberations of that intermediary were in some
way tainted by the actions of the defendant.” 838 F.2d at 1428 (emphasis
added); see also Taylor, 36 F.3d at 457. Here, Craig has not affirmatively
shown, or attempted to show, what evidence the grand jury relied upon to
return an indictment. She has not demonstrated the evidence presented to the
grand jury was improperly presented nor that that evidence could have misled
jurors in making an objective judgment. She has only pointed to a DART
employee’s affidavit indicating that Officer Spiller, hypothetically speaking,
may have been willing to taint an investigation, but not that he actually did,
particularly with regard to the matters presented to the grand jury. Thus, even
if some of the DART officers harbored ill-will toward her, Craig has not
overcome the presumption that an independent intermediary breaks the chain
of causation.   We thus affirm the judgment dismissing Craig’s Fourth
Amendment claim.
                                      IV.
      Next, we turn to Craig’s Fourteenth Amendment due process claim, which
appears to be that the defendants withheld exculpatory information prior to her
criminal trial. While it is true that the duty to disclose material exculpatory
information is rooted in the concept of due process, see United States v. Conroy,
567 F.3d 174, 178 (5th Cir. 2009), the contours of Craig’s argument are vague
and not adequately argued in the briefs, so her claim is forfeited. FED. R. APP.
P. 28(a)(9)(A) (requiring appellant’s argument to contain “appellant’s
contentions and the reasons for them, with citations to the authorities and parts
of the record on which appellant relies”); see also Weaver v. Puckett, 896 F.2d
126, 128 (5th Cir. 1990) (stating that if appellant’s argument is overly vague or
inadequately briefed, the claim is “considered abandoned”).
      Even if Craig had not forfeited this argument, she would not be able to
recover for a constitutional violation.     The duty to disclose exculpatory

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                                  No. 11-10805
information exists to ensure that the accused receives a fair trial. Matthew v.
Johnson, 201 F.3d 353, 360 (5th Cir. 2000). Because Craig was acquitted in her
criminal trial, any intrusion, during that trial, upon her due process rights is
harmless. See Kyles v. Whitley, 514 U.S. 419, 433 (1995) (“[F]avorable evidence
is material, and constitutional error results from its suppression by the
government, if there is a ‘reasonable probability’ that, had the evidence been
disclosed to the defense, the result of the proceeding would have been different.”
(internal citations omitted) (emphasis added)). Furthermore, given that there
is no evidence submitted by Craig to show that Officer Spiller submitted
DART’s investigation to the district attorney’s office, that Officer Spiller
testified before the grand jury, or that Officer Spiller testified at trial, Craig
cannot establish a due process violation. There is nothing linking Officer
Spiller to her trial, and there is nothing in the record suggesting that her trial
was unfair for any reason.
                                       V.
      Finally, we turn to Craig’s malicious prosecution claim. Although a
freestanding federal § 1983 claim for malicious prosecution fails as a matter of
law, see Cuadra v. Houston Indep. Sch. Dist., 626 F.3d 808, 812-13 (5th Cir.
2010), there remains the possibility that Craig’s claim is actionable under Texas
tort law. After examining the relevant statute, however, we find that her claim
is foreclosed.
      The Texas Tort Claims Act (TTCA) provides a limited waiver of immunity
for certain suits against Texas governmental entities. See TEX. CIV. PRAC. &
REM. CODE § 101.021; Mission Consol. Indep. Sch. Dist. v. Garcia, 253 S.W.3d
653, 655 (Tex. 2008). If a plaintiff sues both a governmental unit and any of its
employees under the TTCA, as Craig has in this case, “the employees shall
immediately be dismissed on the filing of a motion by the governmental unit.”
TEX. CIV. PRAC. & REM. CODE § 101.106(e); see also Garcia, 253 S.W.3d at 657

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                                  No. 11-10805
(“[The TTCA’s] apparent purpose was to force a plaintiff to decide at the outset
whether an employee acted independently and is thus solely liable, or acted
within the general scope of his or her employment such that the governmental
unit is vicariously liable.”). Here, Craig sued DART and its officers, so the
officers are entitled to dismissal from the suit. See Garcia, 253 S.W.3d at 658-
59.
       Craig’s claim against DART the municipal entity fares no better. The
TTCA expressly does not apply to claims “arising out of assault, battery, false
imprisonment, or any other intentional tort.” TEX. CIV. PRAC. & REM. CODE
§ 101.057(2) (emphasis added). Malicious prosecution is an intentional tort
under Texas law. See Kroger Texas Ltd. P’ship v. Suberu, 216 S.W.3d 788, 794
(Tex. 2006) (stating that, to prove the tort of malicious prosecution, “the
plaintiff must prove not only that the defendant commenced criminal
proceedings against her and she is innocent of the crime charged, but also that
the defendant lacked probable cause and harbored malice toward her.”
(emphasis added)). This means that Craig’s claim against DART does not fall
under the purview of the TTCA and is thus precluded by DART’s sovereign
immunity as a governmental entity.
                                      VI.
       In sum, we hold that the district court did not err by dismissing Craig’s
complaint. Craig cannot succeed on her claim for false arrest because the grand
jury acted as an independent intermediary in returning the indictment.
Furthermore, Craig cannot succeed on her Fourteenth Amendment due process
claim because she cannot demonstrate that her criminal trial would have ended
differently if DART officers had provided her with the exculpatory evidence of
Officer Spiller’s vendetta against Craig. Finally, Craig cannot succeed on her
malicious prosecution claim because DART is entitled to sovereign immunity



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                                No. 11-10805
and the DART officers are entitled to dismissal of Craig’s claims under the
Texas Tort Claims Act.
     For these reasons, the judgment of the district court is
                                                                 AFFIRMED.




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