     Case: 16-40399      Document: 00513776113         Page: 1    Date Filed: 11/29/2016




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                           United States Court of Appeals
                                                                                    Fifth Circuit
                                    No. 16-40399                                  FILED
                                  Summary Calendar                        November 29, 2016
                                                                             Lyle W. Cayce
                                                                                  Clerk
DOCTOR GLEN W. HURLSTON,

                                                 Plaintiff - Appellant
v.

CITY OF PRINCETON, TEXAS; JEFFERY BARNETT; ROBERT
MITCHNIK; CITY OF KYLE, TEXAS,

                                                 Defendants - Appellees




                   Appeal from the United States District Court
                        for the Eastern District of Texas
                             USDC No. 4:13-CV-757


Before BENAVIDES, PRADO, and COSTA, Circuit Judges.
PER CURIAM:*
       This is an appeal from the grant of summary judgment in favor of the
Appellees, the City of Princeton, Texas, the City of Kyle, Texas, Kyle Police
Chief Jeffery Barnett (“Barnett”), and Princeton Police Officer Robert Mitchnik
(“Mitchnik”). Appellant Doctor Glen W. Hurlston (“Hurlston”) brought this 42
U.S.C. § 1983 suit against the Appellees, alleging that Barnett and Mitchnik



       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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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conspired to violate his federal constitutional rights, that there was a pattern
or practice of harassment against him, and that the cities failed to train or
supervise their officers. Finding no reversible error, we AFFIRM the district
court’s grant of summary judgment in favor of the Appellees.
            I.     BACKGROUND
      The evidence demonstrates that Hurlston and Suzanne Besse began
dating in early 2006. Later that year, Besse began a physical relationship with
Barnett.    At that time, Barnett was the Chief of the Princeton Police
Department. In 2007, Hurlston and Besse (“Ms. Hurlston”) were married and
had a residence in Princeton, Texas. In March of 2011, Ms. Hurlston gave birth
to Barnett’s son while she was still married to Hurlston. In May of 2011,
Barnett moved from Princeton, Texas, to Kyle, Texas, and became the Kyle
Chief of Police.
      On January 1, 2012, Ms. Hurlston called the Princeton Police
Department, claiming that Hurlston had choked her. Officers Joe Pell and
Wayne Clark responded to the domestic disturbance call at the Hurlston’s
residence and observed marks on Ms. Hurlston’s neck. The officers arrested
Hurlston, and he was charged with Assault Family Violence. The next day, a
magistrate issued an emergency protection order, which prohibited Hurlston
from communicating with Ms. Hurlston for 61 days. On January 29, Ms.
Hurlston contacted the police, complaining that Hurlston had violated the
protective order by calling her 20 times and sending texts approximately 50
times.
      With respect to the alleged choking incident, a Collin County grand jury
indicted Hurlston with the third degree felony offense of Assault Family
Violence on March 6, 2012. On April 26, Officer Pannell executed a probable
cause affidavit stating that on January 29, Hurlston had violated the terms of
a court protective order by contacting Ms. Hurlston. On May 16, the Collin
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County District Attorney filed an Information charging that Hurlston had
violated the terms of a protective order by contacting Ms. Hurlston in a
threatening and harassing manner. On June 1, the Collin County Clerk issued
a warrant for Hurlston’s arrest in connection with the charge of violating the
court’s protective order.
      After Hurlston learned there was a warrant for his arrest, he
surrendered to the Collin County authorities on June 19, and made bond. On
January 22, 2013, Hurlston pleaded no contest to the lesser included
misdemeanor offense of Assault. The plea agreement provided for 2 years of
deferred community supervision, a $500 fine and 40 hours of community
service. In addition, the charge of violating the court’s protective order was
dismissed.
      Meanwhile, in August of 2012, on two occasions, an emergency 9-1-1 call
was made from the Hurlston residence. Both times Princeton police officers
responded to the domestic disturbance call, and the officers were able to diffuse
the situation without making an arrest. Mitchnik was one of the police officers
who responded to both calls.
      Hurlston brought suit against Barnett, Mitchnik, the City of Kyle, and
the City of Princeton, alleging constitutional violations pursuant to 42 U.S.C.
§ 1983. Hurlston claimed that the defendants violated his First Amendment
right of free speech, his Fourth and Fifth Amendment right to life and liberty,
and his Fourteenth Amendment right to equal protection under the law.
Counsel for Barnett and Mitchnik filed a motion for summary judgment and
counsel for the cities of Princeton and Kyle filed a separate motion for summary
judgment. In two reports, the magistrate judge recommended that the motions
be granted. Hurlston filed objections to the report and recommendation issued
with respect to Barnett and Mitchnik’s motion for summary judgment. The
district court adopted the magistrate’s recommendation to grant the motions
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for summary judgment and entered final judgment against Hurlston. Hurlston
now appeals.
      II.   ANALYSIS
            A. Standard of Review
      This Court reviews a district court’s ruling on a motion for summary
judgment de novo, “viewing all evidence in the light most favorable to the
nonmoving party and drawing all reasonable inferences in that party’s favor.”
In re Katrina Canal Breaches Litig., 495 F.3d 191, 205–06 (5th Cir. 2007). The
moving party is entitled to summary judgment if it “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).
            B. Challenge to Exclusion of Evidence
      Hurlston contends that the district court “expressly disregarded”
evidence that created a genuine issue of material fact with respect to the
alleged conspiracy that existed between Barnett, Mitchnik and other officers
in the Princeton and Kyle police departments.              In the report and
recommendation, the magistrate judge noted that the defendants had objected
to “certain deposition testimony of Plaintiff, the deposition testimony of Chad
Wilhelm, and the affidavit of Gabriel Brow as hearsay evidence.”             The
magistrate judge ruled that the defendants’ objections were “denied as moot
because the Court did not rely upon the objected-to-evidence in making its
decision on the Summary Judgment Motion.” As such, the magistrate judge
treated the evidence as inadmissible. Hurlston objected to the magistrate
judge’s failure to consider this evidence, and the district court reviewed the
objection de novo.
      The district court sustained the defendants’ objection to the affidavit of
Gabriel Brow, ruling that it constituted hearsay. However, the district court
overruled the defendants’ objections to the other evidence and considered that
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evidence in determining that there was no genuine issue of material fact with
respect to Hurlston’s constitutional claims. Accordingly, the only evidence that
the district court found inadmissible is the affidavit of Gabriel Brow.
       Hurlston contends that the district court erred in excluding the affidavit
of Gabriel Brow because it does not constitute hearsay. We review the district
court’s evidentiary rulings for abuse of discretion. Curtis v. M & S Petroleum,
Inc., 174 F.3d 661, 667 (5th Cir. 1999). In the affidavit, Gabriel Brow states
that in 2013, Ms. Hurlston told him “that she conspired with Jeffery Barnett
in 2011 and 2012 so that Jeffery Barnett would use his influence as the former
police chief of the City of Princeton, Texas and the (then) current police chief
of the City of Kyle, Texas to have Glen Hurlston charged with a felony and
thrown into prison so that [she] and Jeffery would be able to take Glen’s
money.”
       Hurlston argues that the affidavit is not hearsay because it is an
admission offered against an opposing party within the meaning of Rule
801(d)(2) of the Federal Rules of Evidence.          Rule 801(d)(2) does provide that
when an opposing party’s statement is offered against that party, it is not
hearsay if certain conditions are met. However, Ms. Hurlston is not a party to
this lawsuit and thus, the statements attributed to her in the affidavit are by
definition not an admission by a party opponent. Cf. United States v. Anderton,
679 F.2d 1199, 1202–03 (5th Cir. 1982) (explaining that Rule 801(d)(2) “applies
only to the admission of a statement against a party”) (emphasis added).
Hurlston has not shown that the district court abused its discretion in
excluding the affidavit. 1


       1 Rule 801(d)(2)(E) also provides that a statement “made by the party’s coconspirator
during and in furtherance of the conspiracy” does not constitute hearsay. Assuming
arguendo for the purpose of this issue that Ms. Hurlston was a coconspirator with a party to
this suit, the affidavit explicitly states that her admissions to Brow were made in 2013 and
that she had previously conspired with Barnett in 2011 and 2012. Therefore, the statements
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             C. Qualified Immunity
      Hurlston contends that the district court erred in granting Barnett and
Mitchnik summary judgment based on the defense of qualified immunity. “To
determine whether a defendant is entitled to qualified immunity, this Court
engages in a two-pronged analysis, inquiring (1) whether the plaintiff has
alleged a violation of a constitutional right and, if so, (2) whether the
defendant’s behavior was objectively reasonable under clearly established law
at the time the conduct occurred.” Hampton v. Oktibbeha Cnty. Sheriff Dep't,
480 F.3d 358, 363 (5th Cir. 2007) (citing Easter v. Powell, 467 F.3d 459, 462
(5th Cir. 2006)). “If the plaintiff fails to state a constitutional claim or if the
defendant’s conduct was objectively reasonable under clearly established law,
then the government official is entitled to qualified immunity.” Id. (citing
Easter, 467 F.3d at 462). “Qualified immunity gives government officials
breathing room to make reasonable but mistaken judgments,” and “protects all
but the plainly incompetent or those who knowingly violate the law.” Ashcroft
v. al-Kidd, 563 U.S. 732, 743 (2011) (internal quotation marks and citation
omitted). “Once a defendant invokes qualified immunity, the burden shifts to
the plaintiff to show that the defense is not available.” Kovacic v. Villarreal,
628 F.3d 209, 211 (5th Cir. 2010).
                    1. Barnett
      Hurlston contends that Barnett used the position as Police Chief to
harass him and have him arrested. However, the evidence does not raise a
genuine issue of material fact with respect to Barnett’s using his state
authority to have Hurlston harassed and arrested.




were not made “during and in furtherance of the conspiracy;” but instead were made after
the alleged conspiracy. Rule 801(d)(2)(E) does not apply to the affidavit.
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                            a. Arrest for Violating Protective Court Order
       Hurlston’s affidavit states that during the “last week of May 2012, I
called Barnett at work and told his secretary that I am coming to the next Kyle
city council meeting on June 5, 2012 to expose him (Barnett) to the council.”
Hurlston contends that after he called Barnett, “Barnett scrambled to have a
warrant issued” for his arrest before the council meeting to be held on June 5.
To support this contention, Hurlston states that “no action was taken on Ms.
Hurlston’s complaint until” he made the phone call to Barnett. Hurlston is
mistaken.
       After Ms. Hurlston made her complaint that Hurlston had violated the
court protective order, and prior to Hurlston’s call to Barnett, law enforcement
officials did take action. As set forth previously, on April 26, Officer Pannell
executed a probable cause affidavit stating that on January 29, Hurlston had
violated the terms of a court protective order by contacting Ms. Hurlston. 2 On
May 16, the Collin County District Attorney filed an Information charging that
Hurlston had violated the terms of a protective order by contacting Ms.
Hurlston in a threatening and harassing manner. Thus, contrary to Hurlston’s
contention, the case against him was moving through the system prior to his
call to Barnett. Hurlston points to no evidence that raises a fact issue with
respect to whether Barnett used his position with the Kyle Police Department
to have the Collin County District Attorney issue an arrest warrant for his
violating the protective order. 3


       2Hurlston refers to the protection order as “long-expired.” While the protection order
was valid for only 61 days, Ms. Hurlston’s complaint that he violated it was made within the
61-day period.
       3 Moreover, the sequence of events does not support Hurlston’s contention that

Barnett had a warrant issued in order to have him arrested before the Kyle City Council
meeting. The Collin County arrest warrant was issued on June 1, and the Kyle City Council
meeting was scheduled for June 5. Barnett did not surrender to the Collin County Sheriff’s
Department until June 19, which was after the scheduled meeting.
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                        b. Investigate Report Ordered
      Hurlston further contends that “at Barnett’s behest, on May 30, 2012,
the Texas Department of Public Safety, Intelligence and Counterterrorism
Division, produced a ‘Threat to a Peace Officer Investigation’ report on
Hurlston.” The report was admitted in the record, and it provides that the
name of the person who requested the report is Texas Ranger Jimmy
Schroeder. Although Hurlston speculates that Barnett requested the report,
he points to no evidence that Barnett did so.
                        c. Hurlston’s Testimony
      Hurlston also points to his deposition testimony that Ms. Hurlston had
admitted to him that she and Barnett were involved in a “setup” to have him
arrested and take his money. Of course, Hurlston’s testimony with respect to
Ms. Hurlston’s statements to him constitute hearsay and thus do not constitute
competent summary judgment evidence. See Warfield v. Byron, 436 F.3d 551,
559 (5th Cir. 2006) (explaining that hearsay is inadmissible for summary
judgment purposes under Federal Rule of Civil Procedure 56). Thus, like
Brow’s affidavit, this evidence is hearsay and may not be considered because
it is not competent summary judgment evidence.
                        d. Assault Incident
      Hurlston contends that Barnett conspired with Mitchnik and others to
have him arrested for the assault/choking incident on January 1, 2012, in
Princeton. However, neither Barnett nor Mitchnik were present at that arrest.
Indeed, Barnett was the Chief of the Kyle Police Department when the
Princeton Police Officers arrested Hurlston after Ms. Hurlston called 9-1-1,
stating that Hurlston had choked her.
      Hurlston points to the emails between Barnett and Ms. Hurlston as
evidence of a conspiracy against him. In an email sent the day after the
choking incident, Ms. Hurlston tells Barnett that she called the police when
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Hurlston attacked her. In her email to Barnett, Ms. Hurlston stated that she
thought she should tell Barnett because “you got mad the last time I called the
cops on [Hurlston] and didn’t tell you.” This private email between Barnett
and Ms. Hurlston indicates that Barnett had no prior knowledge of any plan
to call the police and have Hurlston arrested.
      Hurlston also points to the email conversation in which Barnett is
offering her some advice about making sure her phone does not have anything
“negative” on it such as “phone numbers, pictures, messages, skype info email
account info” before the attorneys become involved.         Barnett is apparently
advising her to get rid of any evidence of their affair prior to the
commencement of her divorce proceedings. However, a police officer’s private
acts that are not advanced by his state authority, are not acts under color of
state law. Cf. Delcambre v. Delcambre, 635 F.2d 407, 408 (5th Cir. 1981)
(holding that a police chief was not acting under color of state law despite the
fact that he was at work at the police station when he assaulted his sister-in-
law over personal arguments about family issues). Although Barnett advised
Ms. Hurlston about covering up evidence of their affair, this was a private act,
and the evidence does not show that it was connected to his authority as the
Kyle Police Chief.
      Hurlston also points to emails that discuss the Hurlstons’ bank account.
Ms. Hurlston stated that she was going to try to obtain as much cash from the
account as she could. Barnett’s only reference to money is when he asks about
her attorney for the divorce proceedings. Barnett asked if she was going to
employ the same attorney as the one she used in the child custody proceedings
and then stated that he thought the attorney “will say either take half of the
cash . . . or keep receipts to show it was used for child care . . . spousal support
. . . during this time . . . not fun and partying as his attorney will likely say.”
(ellipses in original). Here, Barnett is stating what he thinks her divorce
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attorney will advise her to do with respect to the money in the bank account.
Again, there is no indication that Barnett is acting in his capacity as a state
officer.
       In sum, by the time of Hurlston’s arrests, Barnett had moved from
Princeton to Kyle, and was not present at either arrest.          Although it is
undisputed that Barnett had an affair with Hurlston’s wife and such evidence
provides a motive to harm Hurlston, Hurlston relies on speculation and
innuendo but no competent summary judgment evidence that creates a
material fact issue suggesting that Barnett used his job to harass Hurlston.
                   2. Mitchnik
       Hurlston also contends that the district court erred in granting summary
judgment in favor of Mitchnik. Hurlston argues that “[t]here are genuine
disputes as to material facts about whether Mitchnik engaged in a conspiracy
with Barnett to harass and persecute” him.
       Hurlston points to two occasions in August of 2013 when Princeton Police
Officers responded to 9-1-1 emergency calls made from the Hurlston residence.
On one occasion, Hurlston was the one who called the police, and on the other
occasion, Ms. Hurlston made the emergency call. Mitchnik was one of several
officers that responded on both of those occasions. No one was arrested during
either incident.
       Hurlston complains that during one of these incidents Mitchnik said “I
can arrest you for illegally recording this conversation.”        Hurlston also
complains that Mitchnik partially blocked Hurlston’s access to his home and
daughter during one of these incidents. Because we review the record in the
light most favorable to the non-movant, we assume that Hurlston’s factual
allegations are true.     However, “[t]o establish a cause of action based on
conspiracy a plaintiff must show that the defendants agreed to commit an
illegal act.” Arsenaux v. Roberts, 726 F.2d 1022, 1024 (5th Cir. 1982). As set
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forth above, there is no evidence creating a fact issue with respect to Barnett
using his office to harass Hurlston. Black’s Law Dictionary defines
“conspiracy” as “[a]n agreement by two or more persons to commit an unlawful
act, coupled with an intent to achieve the agreement’s objective, and (in most
states) action or conduct that furthers the agreement; a combination for an
unlawful purpose.” Conspiracy, Black’s Law Dictionary (10th ed. 2014).
Hurlston’s claim of conspiracy fails because there is no evidence that Barnett
conspired with Mitchnik. Mitchnik cannot conspire with himself. Accordingly,
because no fact-finder could reasonably infer from this record that Barnett and
Mitchnik conspired to violate Hurlston’s constitutional rights, the district
court properly granted summary judgment in favor of Mitchnik.
              D. City of Princeton and City of Kyle
       As set forth above, Hurlston has not raised a fact issue with respect to
the claim that Barnett and Mitchnik conspired to violate Hurlston’s
constitutional rights. Hurlston therefore cannot maintain a section 1983 claim
against the cities. See, e.g., Bustos v. Martini Club, Inc., 599 F.3d 458, 467 (5th
Cir. 2010) (explaining that a municipality cannot be held liable under section
1983 if no constitutional violation has been committed by a municipal actor). 4
       III.   CONCLUSION
       For the foregoing reasons, the district court’s judgment is AFFIRMED.




       4 Hurlston contends that the magistrate judge should not have referred to his plea of
nolo contendere (no contest) to the misdemeanor assault charge because it is inadmissible
under Federal Rule of Evidence 410. Although the magistrate judge did refer to Hurlston’s
no contest plea in the background section of the report and recommendation, Hurlston did
not make this objection to the district court. In any event, we need not tarry here any longer.
Assuming arguendo that evidence of the plea was inadmissible, we have reviewed the
summary judgment record de novo and find no error, plain or otherwise, in the district court’s
grant of summary judgment based on the admissible evidence in the record.

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