     Case: 12-40545       Document: 00512256157         Page: 1     Date Filed: 05/29/2013




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

                                                                            FILED
                                                                           May 29, 2013

                                     No. 12-40545                          Lyle W. Cayce
                                   Summary Calendar                             Clerk




JENNIFER BUTLER

                                                  Plaintiff–Appellant
v.

TAMMY WEPPELMAN, in her individual and official capacities,

                                                  Defendant–Appellee



                   Appeal from the United States District Court
                         for the Eastern District of Texas
                              USDC No. 4:09-CV-402




Before SMITH, PRADO, and HIGGINSON, Circuit Judges.
PER CURIAM:*
       Plaintiff–Appellant Jennifer Butler appeals the dismissal on summary
judgment of her 42 U.S.C. § 1983 suit against Defendant–Appellee Tammy
Weppelman for false arrest. The district court held that Weppelman was
entitled to qualified immunity. 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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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                                  No. 12-40545

           I. FACTUAL AND PROCEDURAL BACKGROUND
      This appeal stems from Butler’s involuntary detention following her
suicide attempt in September 2008. According to the record, on September 18,
Butler drove to a lake near Denton, Texas, and ingested large doses of two
prescription medications and half of a bottle of vodka. Earlier in the day she had
e-mailed various account passwords to her mother, with the message, “Just in
case.” After she had ingested the medication and alcohol, Butler called a friend
and told her what she had done.        The friend alerted emergency medical
personnel, who arrived in time to take Butler to the hospital, where she was
treated. At the hospital, Tammy Weppelman and Veronica Armendariz, both
employees of the Denton County Mental Health and Mental Retardation Center
(“MHMR”), conducted an emergency mental health screening and diagnostic
assessment of Butler. The MHMR employees concluded Butler was an ongoing
suicide risk, but the Denton County Sheriff’s Office disagreed with their medical
recommendation that Butler receive inpatient treatment and did not take her
into custody. Instead, Butler was released that evening to her boyfriend’s care
after he signed a statement in which he agreed to guarantee her safety for
twenty-four hours. Butler was to return the next morning for further evaluation
by MHMR professionals.
      At her appointment the next day, Butler told two MHMR employees that
MHMR had been “stupid” for releasing her into her boyfriend’s custody the night
before, as she had been waiting for him to fall asleep in order to make another
suicide attempt. The two MHMR employees informed Weppelman of Butler’s
statement. Butler was re-screened by the Denton County Sheriff’s Office, which
again recommended her release, despite noting in the screening document that
Butler likely posed a danger to herself.       Weppelman and MHMR’s Chief
Operations Officer, Pam Gutierrez, disagreed with the recommendation to
release Butler, and believed emergency detention was required to ensure

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                                    No. 12-40545

Butler’s safety. Accordingly, Weppelman prepared an Application for Temporary
Mental Health Services, which stated, inter alia, that Butler had committed
various “overt acts” consistent with a suicide attempt, that she had planned to
make another attempt while in the custody of her boyfriend, that she was
mentally ill and likely to cause serious harm to herself or others, and that she
had not shown remorse for her actions. Weppelman submitted the Application
to an associate judge at the Denton County Probate Court, who determined
probable cause existed for the issuance of a Magistrate’s Warrant for Butler’s
arrest. Butler was then taken from her apartment and confined to a mental
health facility for several days.
      After her release, Butler brought suit against Weppelman and another
MHMR employee in both their individual and official capacities, alleging “42
U.S.C. § 1983 false arrest and imprisonment,” civil conspiracy, and intentional
infliction of emotional distress. The district court granted motions to dismiss
with respect to all of Butler’s claims except the § 1983 false arrest claim against
Weppelman in her individual capacity. After discovery, Weppelman filed a
motion for summary judgment, claiming qualified immunity on the basis of her
employer’s status as a unit of local government under Texas law.               The
magistrate judge assigned to the case issued a Report and Recommendation
advocating dismissal of Butler’s claim on the grounds that probable cause for the
arrest existed, and Weppelman was therefore entitled to qualified immunity.
The district court adopted the magistrate’s Report and Recommendation, and
Butler timely appealed.
                               II. DISCUSSION
      This court reviews the grant of summary judgment de novo, applying 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

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entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a). However, “[a]
qualified immunity defense alters the usual summary judgment burden of
proof.”   Brown v. Callahan, 623 F.3d 249, 253 (5th Cir. 2010).           Once a
government official has asserted qualified immunity in good faith, the burden
shifts to the plaintiff to show that summary judgment in favor of the official is
not warranted. Hathaway v. Bazany, 507 F.3d 312, 319 (5th Cir. 2007).
      The doctrine of qualified immunity shields government officials performing
discretionary functions from civil damages liability as long as their actions
“could reasonably have been thought consistent with the rights they are alleged
to have violated.” Anderson v. Creighton, 483 U.S. 635, 638 (1987). There are
two prongs to the qualified immunity inquiry. Michalik v. Hermann, 422 F.3d
252, 257–58 (5th Cir. 2005). First, the court asks whether an official’s conduct
violated a constitutional right of the plaintiff. Brown, 623 F.3d at 253. Second,
it asks whether that right was clearly established at the time of the alleged
violation. Id. The court may conduct the two-pronged inquiry in any order, see
Pearson v. Callahan, 555 U.S. 223, 236 (2009), and may rely on either prong of
the defense in its analysis, Manis v. Lawson, 585 F.3d 839, 843 (5th Cir. 2009).
      We begin—and end—our inquiry with a determination of whether
Weppelman’s conduct violated one of Butler’s constitutional rights. “[A] Fourth
Amendment violation may be established where an officer intentionally, or with
reckless disregard for the truth, includes a false statement in a warrant’s
application. Likewise, the intentional or reckless omission of material facts from
a warrant application may amount to a Fourth Amendment violation.” Kohler
v. Englade, 470 F.3d 1104, 1113 (5th Cir. 2006). Butler alleges that Weppelman
made numerous false statements in her Application for Temporary Mental
Health Services that served as the basis for the Magistrate’s Warrant. Butler
does not appear to question that if the statements made in the Application were
accurate, probable cause for her arrest existed. Our review is thus limited to

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                                 No. 12-40545

whether the statements were false and if so, if they were intentionally or
recklessly made.
      The summary judgment standard requires that Butler offer evidence
beyond the allegations in her pleadings that Weppelman intentionally or
recklessly made false statements in the Application she submitted to the
associate judge. See Ontiveros v. City of Rosenberg, 564 F.3d 379, 382 (5th Cir.
2009) (“To negate a defense of qualified immunity and avoid summary judgment,
the plaintiff need not present absolute proof, but must offer more than mere
allegations.” (internal quotation marks omitted)); cf. Stults v. Conoco, Inc., 76
F.3d 651, 655–56 (5th Cir. 1996) (noting that once the moving party has made
a properly supported motion for summary judgment, the nonmoving party must
“go beyond the pleadings and designate specific facts showing that there is a
genuine issue for trial”).
      Butler has offered no such evidence. The statements in the Application
that Butler specifically cites as “false” are the representations that Butler was
likely to cause harm to herself, that she was suffering from severe mental or
emotional distress, that she was experiencing substantial deterioration of her
ability to function independently, that she was unable to make an informed
decision about whether to submit to treatment, and that she would be unable to
effectively participate in outpatient treatment services. These representations
are largely unfalsifiable statements of opinion, and given the circumstances and
Butler’s admission that she had wanted to attempt suicide again, the
representations were well within Weppelman’s discretion to make.           More
importantly, Butler has produced no evidence suggesting that Weppelman did
not reasonably believe those statements to be true. That the Denton County
Sheriff’s Office merely disagreed with the proper course of treatment is not
evidence that the statements in the Application were false, much less that
Weppelman intentionally or recklessly included them. Butler therefore suffered

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                              No. 12-40545

no Fourth Amendment violation, and fails the first prong of the qualified
immunity inquiry. The district court was correct in granting Weppelman’s
summary judgment motion.
                           III. CONCLUSION
     For the foregoing reasons, we AFFIRM the district court’s judgment for
Appellee.




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