     Case: 11-20906    Document: 00512166063      Page: 1   Date Filed: 03/06/2013




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

                                                                     FILED
                                                                  March 6, 2013
                                  No. 11-20906
                                                                  Lyle W. Cayce
                                                                       Clerk
RONALD CURTIS; CEDRIC JOHNSON; CURVIS BICKHAM,

                                            Plaintiffs-Appellants,
v.

W. ANTHONY, Houston Police Department Sergeant; R. CHAPPELL,
Houston Police Department Officer; C. W. STIVERS, Houston Police
Department Officer; UNKNOWN HOUSTON POLICE DEPARTMENT
EMPLOYEES; CITY OF HOUSTON; MILTON WRIGHT, Fort Bend County
Sheriff; KEITH PIKETT, Former Fort Bend County Sheriff's Department
Deputy; UNKNOWN FORT BEND COUNTY EMPLOYEES; FORT BEND
COUNTY,

                                            Defendants-Appellees.


                 Appeal from the United States District Court
                      for the Southern District of Texas


Before STEWART, Chief Judge, and KING and OWEN, Circuit Judges.
PER CURIAM:
      Plaintiffs-Appellants, Ronald Curtis, Cedric Johnson, and Curvis Bickham
(collectively, “Appellants”) appeal the district court’s grant of summary judgment
on their claims under 42 U.S.C. § 1983 in favor of Defendants-Appellees: (i) W.
Anthony, a sergeant in the Houston Police Department (“HPD”); (ii) R. Chappell,
an officer in the HPD; (iii) C. W. Stivers, an officer in the HPD; (iv) the City of
Houston; (v) Milton Wright, the Sheriff of Fort Bend County, Texas; (vi) Keith
Pikett, a former deputy in the Fort Bend County Sheriff's Department; and (vii)
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                                       No. 11-20906

Fort Bend County (collectively, “Appellees”).1 For the reasons provided below,
we AFFIRM the district court’s judgment.
                      I. Background on Dog-Scent Lineups
       Appellants challenge Appellees’ reliance on “dog-scent lineups,” which
Pikett conducted and which the municipalities used to arrest, charge, and hold
Appellants.
A.     Pikett’s Procedures
       To conduct his lineups, Pikett made use of scent-discriminating
bloodhounds. First, Pikett would obtain a scent sample from the suspect under
investigation by wiping the suspect with a sterile gauze pad. The gauze pad,
containing the suspect’s “human scent” and “skin cells,” would be stored in a
Ziploc bag until the time of the lineup.
       At the time of the lineup, a second officer would arrange six cans, one
containing the suspect’s scent pad and the other five containing scent pads from
other persons of the same gender and race. The officer would arrange the cans
approximately ten feet apart and positioned perpendicular to the wind so as to
minimize the crossing of scents.
       Thereafter, Pikett would expose a bloodhound to a scent sample taken
from the crime scene. The trained bloodhound would “alert” if the scent pad
from any of the six cans matched the crime scene sample. Pikett would repeat
the exercise with a second bloodhound to confirm the first bloodhound’s alert.
       2.     Pikett’s Connection to the HPD
       Although Pikett was a deputy with the Fort Bend County Sheriff’s
Department, he volunteered his services to the HPD.


       1
          Appellants also assert claims against “unknown” HPD and Fort Bend County
employees. Additionally, to the extent Appellants assert claims against Anthony, Chappell,
Stivers, and Wright in their official, as opposed to their individual, capacities, we address
those claims in our discussion of Appellants’ claims against the City of Houston and Fort Bend
County.

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       3.      Texas Caselaw Concerning the Use of Dog-Scent Lineups
       Texas state jurisprudence concerning the use of dog-scent lineups has
evolved over the past decade. However, at the time of the events at issue in this
case, approximately 2007 to 2009, the Texas courts uniformly had accepted
Pikett as an expert on dog-scent lineups.              Furthermore, the Texas courts
uniformly had accepted the results of his lineups as inculpatory evidence in
criminal proceedings.
       The following is a representative timeline of recent Texas cases concerning
the use of dog-scent lineups. Each of these cases personally involved Pikett:

            (i) Winston v. State, 78 S.W.3d 522, 527 (Tex. App. 2002)
            (concluding that the use of dog-scent lineups is a
            “legitimate field of expertise”);

            (ii) Robinson v. State, No. 09-06-51-CR, 2006 WL 3438076,
            at *4 (Tex. App. Nov. 29, 2006) (unpublished) (applying
            Winston to reach the same conclusion);

            (iii) Winfrey v. State, 323 S.W.3d 875, 884-85 (Tex. Crim.
            App. 2010) (holding that inculpatory evidence obtained
            from dog-scent lineups “may raise a strong suspicion of . .
            . guilt,” but “is merely supportive” and, “when used alone
            or as primary evidence, [is] legally insufficient to support
            a conviction”);2

            (iv) State v. Smith, 335 S.W.3d 706, 712 (Tex. App. 2011)
            (affirming the trial court’s finding that the state had failed
            to establish the reliability of Pikett’s dog-scent lineups, but
            declining to reach whether the use of such lineups remains
            a legitimate area of expertise in light of Winfrey v. State);
            and



       2
          This “Winfrey” case, which proceeded in state court, is the predicate criminal
proceeding to Winfrey v. San Jacinto County, No. 11-20555, 2012 WL 3062159 (5th Cir. Jul.
27, 2012) (unpublished), a federal constitutional tort case discussed throughout this opinion.
All subsequent references to “Winfrey” refer to the federal proceeding.

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                                       No. 11-20906

           (v) Powell v. State, No. 14-09-398-CR, 2011 WL 1579734,
           at *2 n.2, 3 (Tex. App. Apr. 21, 2011) (unpublished)
           (affirming the trial court’s finding that Pikett’s dog-scent
           lineups were reliable with respect to the “procedures
           employed in this particular case,” and noting that the
           appellant had not challenged the facial legitimacy of dog-
           scent lineups).

              II. Background on Winfrey v. San Jacinto County
       On July 27, 2012, this Court issued a decision in Winfrey v. San Jacinto
County, No. 11-20555, 2012 WL 3062159 (5th Cir. Jul. 27, 2012) (unpublished),
which resolved legal issues that directly parallel those raised in this appeal and
which addressed much of the same evidence.3 In Winfrey, the plaintiff, who was
represented by the same counsel as the Appellants here, brought a similar action
under 42 U.S.C. § 1983 pertaining to a dog-scent lineup conducted by Pikett.
The Winfrey plaintiffs sued Fort Bend County; Pikett; and Wright; as well as
San Jacinto County, Texas; various San Jacinto County officers; and various
Texas Rangers.
       As in the instant case, the plaintiffs argued that (i) Pikett’s dog-scent
lineups were a fraud; (ii) the other individual defendants knew it, and either
actively conspired with Pikett or failed to intervene; and (iii) the municipal
defendants had failed to establish policies to monitor the use of the lineups for
fraud and unreliability. As in the instant case, the individual defendants
asserted qualified immunity defenses. The municipal defendants argued that
there was no obligation to establish a policy to monitor the lineups, and that the
absence of such a policy would have created liability only if the municipalities
had failed to establish one specifically to evade liability.

       3
         Winfrey is an unpublished opinion and, therefore, is not binding precedent in this
Circuit. However, in light of Winfrey’s significant overlap with the instant case, we quote its
well-reasoned analysis where appropriate, as persuasive authority, and cite to its facts for the
limited purpose of comparing and contrasting them with the instant ones in order to highlight
the instant case’s distinct factual posture.

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                                  No. 11-20906

      The same district court judge as in the instant case granted summary
judgment to all defendants. As in the instant case, the district court denied the
plaintiffs’ request for supplemental discovery pursuant to Federal Rule of Civil
Procedure (“FRCP”) 56(d).
      On appeal, the Winfrey panel reversed summary judgment as to the San
Jacinto County officers, citing, inter alia, a factual dispute over whether the
officers had acted recklessly by submitting search and arrest warrant affidavits
containing false statements and material omissions. It also reversed summary
judgment as to Pikett, citing a factual dispute over whether a videotape of the
dog-scent lineup at issue demonstrated that Pikett had manipulated his
bloodhounds to cue false alerts during the lineups. The panel affirmed summary
judgment as to the remaining defendants on qualified immunity grounds and for
failure to establish municipal liability.
                      III. Background on the Instant Case
A.    Facts Pertaining to Curtis
      A T-Mobile store in Harris County, Texas was burglarized in June 2007.
The perpetrator had pried open the store’s back door and left mud at the store’s
entrance.
      The HPD responded, and officers spotted Curtis and a passenger in a car
near the store. Curtis had a lengthy criminal record.
      In the car, the officers spotted a crowbar, a sledge hammer, a bolt cutter,
and two tire irons. Markings on the store’s back door matched markings on the
crow bar. While the officers checked the driver’s licenses of Curtis and the
passenger, they noticed that someone had moved the crowbar from the car’s
center console to under the rear floorboard.
      Both Curtis and the passenger were wearing muddy shoes. Additionally,
the officers spotted two unopened T-Mobile phones and an unopened T-Mobile
battery in the car.

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                                 No. 11-20906

      Curtis and the passenger provided conflicting accounts to the HPD officers.
At first, Curtis stated that the tools found in the car were his, and that he and
the passenger had been using them to perform car maintenance work before
stopping to eat at a restaurant next to the T-Mobile store. Later, Curtis denied
that he owned the tools. At first, the passenger stated that he and Curtis had
been at the store because Curtis had driven the passenger to the store to pay his
T-Mobile bill. Later, the passenger stated that, after Curtis had driven him to
the T-Mobile store, Curtis had attempted to break into the store using the
crowbar.
      The HPD officers arrested Curtis and the passenger. However, the officers
released them the same day after the magistrate judge found that there was
insufficient probable cause to hold them.
      Stivers had been investigating a string of burglaries involving two other
T-Mobile stores within the vicinity. Upon learning of Curtis’s arrest, Stivers
compared Curtis’s driver’s license photo with a still photo from a surveillance
video of another T-Mobile store burglary. He determined that the photos
matched.
      Notwithstanding the above, a wallet, fingerprints, and blood left at one of
the burglary scenes did not match Curtis. Therefore, Stivers approached Pikett
to conduct a dog-scent lineup. Pikett had conducted lineups for Stivers in two
prior cases.
      After Curtis refused to provide a voluntary scent sample, Stivers obtained
one by subpoena. Pikett used his dogs to compare Curtis’s scent with scent
samples taken from the three burglarized stores. Stivers obtained these scent
samples weeks and, in some cases, months after the times of the burglaries.
Accordingly, the burglarized stores had experienced routine cleanings and
customer traffic between the times of the burglaries and the times that Stivers



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                                 No. 11-20906

obtained the scent samples. Nevertheless, the dogs alerted to a match between
each store’s scent sample and Curtis’s scent.
      Curtis again was arrested. Based on the photographic evidence and the
lineup confirmation, the magistrate judge found that there was probable cause
to hold him. A Harris County assistant district attorney charged Curtis with
burglary and theft. Two grand juries indicted him on the charges.
      The string of burglaries at T-Mobile stores continued after Curtis’s arrest.
After eight months in jail, Curtis was released and the charges were dropped
without a trial.
B.    Facts Pertaining to Johnson and Bickham
      Three people were murdered in a Houston home in November 2007.
Thereafter, the perpetrators set the home on fire. When HPD officers responded
to the scene, they found the charred remnants of a gasoline can, a cigarette
lighter, and two guns, as well as the remains of the victims, who had been shot
in the head.
      The HPD assigned Anthony and Chappell to lead an investigation.
Anthony and Chappell traced the charred gas can to a nearby service station,
where they obtained a surveillance video of two men purchasing the can. The
HPD released still photos from the surveillance video to the public, whereupon
multiple witnesses identified Johnson because his distinctive girth and tattoos
matched one of the men in the released photos. Some of those witnesses
revealed that Johnson, at one time, had worked at an apartment complex that
one of the shooting victims had managed. The witnesses reported that Johnson
and the victim frequently had argued.
      Johnson’s alibi was that he was working at the time of the shootings.
However, Johnson’s present boss informed the HPD that Johnson had left work
several hours prior to the murders. Johnson’s job site was situated immediately



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                                No. 11-20906

across the street from the service station where the perpetrators had purchased
the gas can.
      After learning of Pikett from a fellow officer, Anthony and Chappell
approached him to conduct a dog-scent lineup that included Johnson. Johnson
provided a voluntary scent sample. Pikett compared Johnson’s scent with scent
samples taken from all four items recovered at the murder scene. The dogs
alerted to a match for each item.
      Johnson was arrested, and the magistrate judge found that there was
probable cause to hold him. The district attorney filed charges for two of the
murders, and the grand jury indicted him on those charges.
      A few months into Johnson’s incarceration, Will Samuels, Johnson’s cell
mate, contacted the district attorney’s office to report that Johnson had
confessed to the shootings. Samuels then met with Anthony and Chappell in the
presence of his attorney. He relayed to them crime scene details known only to
the investigators.
      In April 2008, Samuels notified Anthony and Chappell that Johnson had
identified Bickham as his accomplice in the shootings. Anthony and Chappell
again approached Pikett, who compared Bickham’s scent with scent samples
taken from the four items recovered at the murder scene. At that point, the
scent samples from the murder scene were more than a year old. Nevertheless,
the bloodhounds alerted to a match for three of the four items. Bickham was
arrested, charged, and indicted for two of the murders.
      Subsequently, Samuels recanted his statements.          Indeed, Samuels
confessed to perpetrating the murders himself. In May 2009, Johnson and
Bickham were released, and the charges against them were dropped. Johnson
had been incarcerated for approximately eighteen months, and Bickham for
seven months.    Later, the HPD determined that Samuels could not have
perpetrated the murders because he was working in Boston at the time of the

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                                   No. 11-20906

shootings. A dog-scent lineup conducted by Pikett indicated that Samuels’s
scent did not match any of the items recovered at the murder scene. Samuels
ultimately advised Anthony that he had falsely confessed to the murders in
order to stop threats and attacks, made by gang members affiliated with
Johnson, within the prison.
C.    Procedural History
      Appellants brought the instant action against (i) Stivers, Anthony, and
Chappell in their individual capacities; (ii) Wright in his individual capacity; (iii)
the City of Houston; and (iv) Fort Bend County, pursuant to 42 U.S.C. § 1983.4
      Among other things, Appellants alleged: (i) that Pikett had manipulated
and misrepresented the results of his dog-scent lineups to manufacture
fraudulent inculpatory evidence in violation of Brady v. Maryland, 373 U.S. 83
(1963); (ii) that Anthony, Chappell, and Stivers had failed to intervene to
prevent Pikett’s alleged frauds; (iii) alternatively, that Anthony, Chappell, and
Stivers actively had conspired with Pikett to manufacture fraudulent evidence;
(iv) that Anthony and Chappell had coerced Samuels to implicate Johnson and
Bickham falsely; (v) that Wright was liable for failing to train or supervise
Pikett; and (vi) that Fort Bend County and the City of Houston were liable under
Monell v. Department of Social Services, 436 U.S. 658 (1978), for failing to
establish policies to monitor the use of dog-scent lineups for unreliability and
fraud.
      After limited discovery, consisting largely of an exchange of documentary
evidence, including videos of Johnson’s and Bickham’s lineups, Appellees moved
for summary judgment.         In their motion, Appellees argued:         (i) that no
constitutional right of Appellants had been violated; (ii) regardless, that the non-
municipal Appellees were protected by qualified immunity, with respect to the

      4
        As noted earlier, Appellants also assert claims against “unknown” HPD and Fort
Bend County employees.

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                                   No. 11-20906

claims brought in their individual capacities, because their actions were
objectively reasonable and did not violate any clearly established rights; (iii) that
Wright was not personally involved in the events at issue; (iv) that the
magistrate judges’ findings of probable cause, the prosecutors’ filings of charges,
and the grand juries’ indictments had severed causation; (v) that the municipal
Appellees had no obligation to establish a policy to monitor dog-scent lineups,
and that the absence of such a policy would have created liability only if the
municipalities had failed to establish one specifically to evade liability; (vi) that
Appellants had offered no evidence to support their claims other than expert
reports, which Appellees attacked as unreliable, contradictory, and conclusory;
and (vii) that Appellants, in general, had offered only vague and conclusory
allegations, which lacked sufficient evidentiary support.
       In response, Appellants submitted an affidavit, pursuant to FRCP 56(d),
requesting supplemental depositions and interrogatory discovery in order to
develop additional facts to oppose Appellees’ motion. The district court denied
Appellants’ FRCP 56(d) request as insufficiently articulated and speculative,
especially in light of the non-municipal Appellees’ assertions of qualified
immunity. The district court then granted summary judgment in favor of
Appellees, citing, inter alia, qualified immunity and insufficient evidence of
constitutional violations.
       Appellees pursue the same claims on appeal. However, they also challenge
the district court’s denial of their FRCP 56(d) request as an abuse of discretion.
                             IV. Standard of Review
A.     Summary Judgment
       This Court reviews de novo a district court’s grant of summary judgment
on the issue of qualified immunity and applies the same standards as the district
court. Mack v. City of Abilene, 641 F.3d 547, 555 (5th Cir. 2006) (per curiam)
(citation omitted). “Summary judgment is proper when the pleadings and

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                                  No. 11-20906

evidence demonstrate that no genuine issue of material fact exists and the
movant is entitled to judgment as a matter of law.” Pluet v. Frasier, 355 F.3d
381, 383 (5th Cir. 2004) (citation omitted); see also Fed. R. Civ. P. 56(c). When
reviewing grants of summary judgment, this Court “construe[s] all facts and
inferences in the light most favorable to the nonmoving party.” Murray v. Earle,
405 F.3d 278, 284 (5th Cir. 2005) (citation omitted). “Rule 56(c) mandates the
entry of summary judgment, after adequate time for discovery and upon motion,
against a party who fails . . . to establish the existence of an element essential
to that party’s case, and on which that party will bear the burden of proof at
trial.” Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986).
B.     FRCP 56(d) Requests for Supplemental Discovery
       We review for abuse of discretion “the district court’s decision to preclude
further discovery prior to granting summary judgment.” Krim v. BancTexas
Grp., Inc., 989 F.2d 1435, 1441 (5th Cir. 1993) (citations omitted).
Notwithstanding this discretion, FRCP 56(d) “allows for further discovery to
safeguard non-moving parties from summary judgment motions that they cannot
adequately oppose.” Culwell v. City of Fort Worth, 468 F.3d 868, 871 (5th Cir.
2006) (citation omitted). “Such motions are broadly favored and should be
liberally granted.”   Id. (citation omitted).   Nevertheless, because qualified
immunity “is an immunity from suit rather than a mere defense to liability,” the
district court should limit the extent of discovery if it is avoidable. See Mitchell
v. Forsyth, 472 U.S. 511, 526 (1985) (4-3) (emphasis in original).
                                 V. Discussion
       As noted above, Appellants brought claims alleging: (i) that Pikett had
manipulated and misrepresented the results of his lineups to manufacture
fraudulent evidence in violation of Brady v. Maryland, (ii) that Anthony,
Chappell, and Stivers had failed to intervene to prevent Pikett’s alleged frauds;
(iii) alternatively, that Anthony, Chappell, and Stivers actively had conspired

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                                       No. 11-20906

with Pikett to manufacture fraudulent evidence; (iv) that Anthony and Chappell
had coerced Samuels to implicate Johnson and Bickham; (v) that Wright was
liable for failing to train or supervise Pikett; and (vi) that Fort Bend County and
the City of Houston were liable under Monell v. Department of Social Services,
for failing to establish policies to monitor the use of dog-scent lineups for
unreliability and fraud.
       On November 9, 2012, we directed counsel to “file simultaneous letter
briefs addressing in detail the significance of” Winfrey, 2012 WL 3062159, which
resolved legal issues that directly parallel those raised in this appeal and
addressed much of the same evidence.5 The panel in Winfrey affirmed the
district court’s grant of summary judgment in part, but vacated summary
judgment as to two of the San Jacinto County officers and as to Pikett.
       Here, for the same reasons provided in Winfrey, we affirm summary
judgment as to Wright, Fort Bend County, the City of Houston, and the
unknown HPD and Fort Bend County employees, on qualified immunity grounds
and for failure to establish municipal liability.                That said, the factual
circumstances here are such that, fully applying the reasoning from Winfrey, we
also affirm summary judgment as to the remaining Appellees.
A.     For the same reasons provided in Winfrey, we affirm summary
       judgment as to Wright, Fort Bend County, the City of Houston,
       and the unknown HPD and Fort Bend County employees.
       1.   The Applicable Law
              a.     Qualified Immunity
       “Qualified immunity shields federal and state officials from money
damages unless a plaintiff pleads facts showing (1) that the official violated a



       5
        We refer to the parties’ respective letter briefs as the “Appellants’ Letter Br.,” the
“FBC Letter Br.” (Wright, Pikett, Fort Bend County, and the unknown Fort Bend County
employees), and the “Hous. Letter Br.” (Stivers, Anthony, Chappell, the City of Houston, and
the unknown HPD employees).

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                                  No. 11-20906

statutory or constitutional right, and (2) that the right was ‘clearly established’
at the time of the challenged conduct.” Ashcroft v. Al-Kidd, ___ U.S. ___, 131 S.
Ct. 2074, 2080 (2011) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)
(citations omitted)). “A Government official’s conduct violates clearly established
law when, at the time of the challenged conduct, ‘[t]he contours of [a] right [are]
sufficiently clear’ that every ‘reasonable official would have understood that
what he is doing violates that right.’”       Id. at 2083 (quoting Anderson v.
Creighton, 483 U.S. 635, 640 (1987) (alterations in original)).
      This inquiry into the objective legal reasonableness of the official’s conduct
operates to ensure that the official is on notice that his conduct is unlawful
before he can be subjected to suit. Pearson v. Callahan, 555 U.S. 223, 244 (2009)
(citations and internal quotation marks omitted). Thus, “[q]ualified immunity
gives government officials breathing room to make reasonable but mistaken
judgments about open legal questions. When properly applied, it protects ‘all
but the plainly incompetent or those who knowingly violate the law.’” Al-Kidd,
131 S. Ct. at 2085 (quoting Malley v. Briggs, 475 U.S. 335, 341 (1986)).
            b.     Probable Cause
      “[P]robable cause requires only a probability or substantial chance of
criminal activity, not an actual showing of such activity.” Ill. v. Gates, 462 U.S.
213, 245 n.13 (1983). Thus, “[p]robable 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.” Mack, 641 F.3d at 552 n.1 (citation and internal
quotation marks omitted).
      A trial court “considers the expertise and experience of the law
enforcement officials when considering what a ‘reasonable person’ would have
concluded.” Id. (citation omitted). This Court reviews the trial court’s probable



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                                   No. 11-20906

cause determination de novo. United States v. Lopez-Moreno, 420 F.3d 420, 430
(5th Cir. 2005) (citing Ornelas v. United States, 517 U.S. 690, 699 (1996)).
             c.    Municipal Liability
      “Knowledge on the part of a policymaker that a constitutional violation
will most likely result from a[n] . . . official custom or policy is a sine qua non of
municipal liability under section 1983.” Burge v. St. Tammany Parish, 336 F.3d
363, 370 (5th Cir. 2003) (footnote omitted).        Accordingly, a plaintiff must
establish that the body governing a municipality, or an official to whom the body
had delegated its policy-making authority, had actual or constructive knowledge
of the custom or policy at issue. Id. (citation omitted).
      2.     The Panel’s Analysis in Winfrey
      The Winfrey panel concluded that the plaintiff’s claims against the
defendants, other than Pikett and the two San Jacinto County officers, “fail[ed]
because, even if [the plaintiff] allege[d] violations of clearly-established
constitutional rights, he lack[ed] evidence showing that the Defendants were on
notice that their actions were unlawful.” 2012 WL 3062159, at *4 (internal
quotation marks omitted) (citing Pearson, 555 U.S. at 244 (citation omitted)).
      In reaching that conclusion, the panel determined that the defendants had
not been “objectively unreasonable in seeking Pikett’s assistance and then using
the resulting information as part of their investigation.” Id. After all, at the
time of the defendants’ investigation, “Pikett enjoyed a solid reputation.” Id.
“[A]t least one Texas court had held that scent line-ups were a ‘legitimate field
of expertise’ and that Pikett’s methods properly relied upon and utilized the
principles involved in the field.” Id. (quoting Winston, 78 S.W.3d at 527, and
citing Robinson, 2006 WL 3438076, at *4). Thus, Pikett’s conduct alone could
not “establish that [the defendants] knowingly passed along Pikett’s allegedly
false evidence, consciously disregarded a duty to intervene, or willfully conspired
to violate [the plaintiff’s] constitutional rights.” Id. at *5.

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       Moreover, “nothing in the record show[ed] that Wright had any direct,
personal involvement in the . . . investigation.” Id. at 9 n.6 (citing Thompson v.
Steele, 709 F.2d 381, 382 (5th Cir. 1983)). Additionally, the panel noted that the
plaintiff had failed to offer summary judgment evidence of knowledge or “any
[other] municipal liability element.” Id.
       Nothing about the above analysis necessarily limits it to the specific facts
and circumstances of Winfrey. Accordingly, because the analysis resolved legal
issues that directly parallel those raised in this appeal and addressed much of
the same evidence, we hold that it fully applies to Appellants’ claims against
Wright, Fort Bend County, the City of Houston, and the unknown HPD and Fort
Bend County employees. We thus affirm the district court’s grant of summary
judgment as to those Appellees.
B.     Winfrey is distinguishable as to the claims against Stivers,
       Anthony, and Chappell.
       1.       Background on Winfrey
       In Winfrey, the panel concluded that the plaintiff had raised a sufficient
factual issue as to whether the San Jacinto County officers had “used false
information to secure search and arrest warrants and [had] failed to disclose
exculpatory evidence.” 2012 WL 3062159, at *6. The panel noted that, “even
without respect to the question of Pikett’s methods,” the officers “may have acted
recklessly in submitting warrant affidavits that contained false statements and
material omissions that affected [the plaintiff’s] constitutional rights.” Id.
       Specifically, the search and arrest warrant affidavits that the officers
submitted had stated that a “drop-trail” from the crime scene to the plaintiff’s
home had used the plaintiff’s scent. Id. However, the record showed that the
officers knew a third person’s scent had been used by mistake. See id. at *7.6



       6
           Pikett was not responsible for this mistake. See Winfrey, 2012 WL 3062159, at *7.

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                                  No. 11-20906

Since the officers had executed the warrant affidavits two years after the drop-
trail, the panel concluded that “no time exigency existed that would have
explained the absence of accurate information.” Id. Moreover, the affidavits had
reported facts gleaned from an inmate informant, without disclosing several
“major” inconsistencies in the informant’s story. Id.
      The panel noted that the Fourth Amendment’s warrant requirement
“imposes an obligation to set forth particular facts and circumstances underlying
the existence of probable cause, so as to allow the magistrate to make an
independent evaluation of the matter.” Id. at *8 (citation and internal quotation
marks omitted).      It added that this obligation “extends to providing facts
concerning the reliability of the information and the credibility of its source and
to avoiding deliberately or recklessly false statements.” Id. (citation and internal
quotation marks omitted).
      The panel observed that the “warrant affidavits here fail[ed] this
standard” because they “likely deprived the magistrate of the opportunity to
independently weigh whether [the officers’] evidence established probable
cause.” Id. at *8-9. The panel explained that the record indicated the officers
had “heavily relied on the false drop-trail representation and incomplete
information regarding [the informant].” Id. at *8. Indeed, in one of the search
warrant affidavits, one of the officers had explained that the evidence from the
drop-trail and the evidence from the informant “were the two primary reasons
the officers had enough [probable cause] to get [the] search warrant.” Id.
(internal quotation marks omitted).
      For these reasons, the panel concluded that the plaintiff had “made a
sufficiently substantial preliminary showing to make [qualified immunity]
summary judgment for [the officers] inappropriate at [that] juncture.” Id. at *9
(internal quotation marks omitted). In reaching this conclusion, the panel noted
that the plaintiff had made a “threshold showing of objective unreasonableness.”

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                                     No. 11-20906

Id. at *10 (footnote and citation omitted). Therefore, the district court should
have allowed the plaintiff “to conduct additional discovery to determine whether
[the officers had] executed affidavits with at least a reckless disregard for the
truth, i.e., [had] acted objectively unreasonably.”            See id. at *9 (internal
quotation marks omitted) (citing United States v. Astroff, 578 F.2d 133, 135-36
(5th Cir. 1978) (en banc)). Accordingly, the panel reversed the district court’s
summary judgment, which the district court had granted on the basis of
qualified immunity. Id. at *10.
       In general, the panel concluded that the district court had not abused its
discretion by denying the plaintiff’s request for supplemental FRCP 56(d)
discovery. Id. at *12. However, the panel determined that the district court
should have allowed the plaintiff limited supplemental discovery on the above-
discussed issues. Id.
       2.     The Parties’ Arguments Concerning the Applicability of
              Winfrey
              a.   Appellants
       In their letter brief, Appellants do not directly address whether Winfrey
is distinguishable as to the claims against Stivers, Anthony, and Chappell.
However, Appellants note that there is additional evidence in the instant case’s
record that raises a factual dispute. Appellants’ Letter Br. at 3. Namely,
Appellants cite to an affidavit from an assistant district attorney for Harris
County, averring that “Pikett’s methodology seemed so blatantly unreliable that
[the attorney] went so far as to send out an all-prosecutor email in case any
other similar cases had been filed . . . based on this type of unreliable evidence.”
Id. at 3-4 (citation and internal quotation marks omitted).7



       7
          The assistant district attorney did not work on the instant case other than as an
expert witness for Appellants. The parties dispute whether the prosecutors who did work on
this case received the above-referenced email prior to filing charges.

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                                      No. 11-20906

       Additionally, Appellants argue that the Winfrey record on appeal did not
include the videotape of the lineup in question. Id. at 4. In the instant case, by
contrast, the record on appeal includes tapes of two of the lineups—Johnson’s
and Bickham’s. Id. Appellants contend that the two tapes are additional
“evidence supporting a dispute of fact” as to whether Stivers, Anthony, and
Chappell actively conspired in or failed to prevent Pikett’s alleged fraud. Id.8
              b.     Appellees
       In response, Appellees note that Winfrey’s reversal of summary judgment
as to the San Jacinto County officers was predicated on possible constitutional
violations “even without respect to the question of Pikett’s methods.” FBC
Letter Br. at 4 (emphasis, citation, and internal quotation marks omitted). In
other words, even if Pikett had not caused the Winfrey plaintiff any
constitutional injury, the San Jacinto County officers had done so for
independent reasons.
       Having distinguished Winfrey, Appellees then cite to Scott v. Harris, 550
U.S. 372, 378-81 (2007), for the proposition that “when a videotape is available,
the Court should view the facts in the light depicted by the videotape . . . rather
than by resorting to the differing versions offered by various witnesses so as to
create disputed issues of fact.” FBC Letter Br. at 4-5. Moreover, Appellees
argue that the fact that Anthony and Chappell videotaped the lineups of
Johnson and Bickham demonstrates that the officers “were not trying to hide
anything” with respect to the lineups. Hous. Letter Br. at 4.
       Appellees also contend that, in Winfrey, the evidence corroborating Pikett’s
dog-scent lineup itself—from the drop-trail and from the informant—was



       8
         While the record on appeal does not include a videotape of Curtis’s lineup, we treat
the tapes of Johnson’s and Bickham’s lineups as representative of Curtis’s lineup and,
therefore, as evidence representative of whether Stivers actively conspired in or failed to
prevent Pikett’s alleged fraud.

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                                       No. 11-20906

compromised by alleged constitutional violations. FBC Letter Br. at 5. In the
instant case, by contrast, independent and untainted sources of corroboration
included, with respect to Curtis: (i) his vicinity to the crime scene; (ii) the
crowbar with markings matching the T-Mobile store’s door, which HPD officers
spotted in Curtis’s car and which Curtis seemingly attempted to conceal; (iii) the
unopened T-Mobile merchandise in Curtis’s car; and (iv) the apparent match of
Curtis’s driver’s license photo to the still from the surveillance video. Hous.
Letter Br. at 4 n.1.9        With Respect to Johnson and Bickham, sources of
corroboration included: (i) the surveillance video of the gasoline can purchase
by both men; (ii) the witnesses from the general public who identified Johnson;
(iii) a motive on the part of Johnson; and (iv) a false alibi on the part of Johnson.
Id.10 Thus, Appellees contend that the instant Appellants cannot show that the
HPD’s reliance on Pikett’s lineups caused them any harm “because probable
cause would have existed . . . with or without Pikett’s evidence.” FBC Letter Br.
at 5 (citation omitted).
       Finally, Appellees note that, in the instant case, Appellants allege that
Anthony and Chappell “coerced” Samuels into becoming “a jailhouse snitch.”
Hous. Letter Br. at 4. Appellees characterize this allegation as made up “out of
thin air, without one shred of evidence” Id. They contend that FRCP 56(d)
discovery based on this allegation would have been inappropriate because
“nothing stopped Appellants from contacting [Samuels] or his attorney and
obtaining an affidavit or evidence of any alleged coercion, or from presenting




       9
         Additional independent and untainted sources of corroboration, not cited in Appellees’
letter briefs, were the inconsistent alibis of Curtis and his passenger.
       10
          An additional independent and untainted source of corroboration, not cited in
Appellees’ letter briefs, was the information from Samuels, who identified Bickham and
reported Johnson’s confession.

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                                        No. 11-20906

evidence from Johnson himself regarding [Samuels].” Id. Nothing in the record
suggests that Appellants did so.
       3.     Analysis
       Winfrey is clearly distinguishable as to the claims against Stivers,
Anthony, and Chappell. Unlike in Winfrey, the instant Appellants do not assert
constitutional tort claims that are independent of Pikett’s dog-scent lineups.
Indeed, Appellants implicitly concede as much. In their letter brief, they fail to
address the Winfrey panel’s “even without respect to [Pikett]” language.
       Here, unlike in Winfrey, there is sufficient evidence to extinguish any
genuine dispute as to whether Stivers, Anthony, and Chappell acted objectively
unreasonably       by    being    party     to     Pikett’s   lineups.       The    collective
record—enumerated            in   the     previous      section     discussing     Appellees’
arguments—shows that the officers would have satisfied the standard for
probable cause even without the evidence from Pikett’s lineups.11 Therefore, the
Winfrey panel’s reversal of summary judgment as to the San Jacinto County
officers was limited to the distinct factual posture of that case.
       Furthermore, the particular facts of this case provide no additional reason
to reverse the district court’s grant of summary judgment. The assistant district
attorney’s opinion of Pikett’s lineups, while probative, was just that—an opinion.
Indeed, it is unclear if the actual prosecutor of this case was even aware of the
assistant district attorney’s opinion.
       Finally, as Appellants note, the instant record includes videotapes of two
of the lineups, which we have reviewed. Consistent with the Supreme Court’s
decision in Scott, we treat those tapes as conclusive as to the facts depicted in


       11
          For clarity, we note that, while the magistrate judge initially determined that there
was insufficient probable cause to hold Curtis, the magistrate judge made that determination
before Stivers matched Curtis’s driver’s license photo to the still from the surveillance video.
At that point, if not earlier, Stivers had sufficient probable cause to continue investigating
Curtis “even without respect to” Pikett’s lineups.

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                                         No. 11-20906

them. See 550 U.S. at 378-81. In other words, we will not recognize a fact
dispute sufficient to overturn the summary judgment if the tapes settle that
dispute.
       Here, the tapes are not conclusive as to Appellants’ “fraud” allegations.
A reasonable jury might or might not find them suggestive of a fraud by Pikett,
and of a failure to prevent, or of an active participation in, that fraud by Stivers,
Anthony, and Chappell.                Nevertheless, there is substantial evidence
corroborating probable cause.              Thus, even if Pikett did manipulate or
misrepresent his results, which is uncertain, Appellants were not incrementally
harmed. They could have been arrested, charged, and indicted regardless. We
will not disturb the district court’s summary judgment in such circumstances.12
       In sum, Winfrey is distinguishable as to the claims against Stivers,
Anthony, and Chappell. Moreover, the unique facts of this case provide no
alternative reason to reverse summary judgment or the district court’s denial of
Appellants’ FRCP 56(d) request. Accordingly, we affirm the district court’s grant
of summary judgment as to those officers.
C.     Winfrey is distinguishable as to the claims against Pikett.
       1.      Background on Winfrey
       The Winfrey panel concluded that the plaintiff had raised a sufficient
factual issue as to whether “Pikett [had] cued his dogs during the scent line-up”
in question. 2012 WL 3062159, at *6. It explained that the scent lineup had
been videotaped, but that the tape had not been included in the record on appeal.
Id. Nevertheless, both parties had offered conflicting interpretations of the
tape’s contents. Id.
       The plaintiff’s expert had opined that Pikett’s lineup procedures were
“more consistent with him using his ability to see inside the cans and identify

       12
          The fact that the officers willingly permitted Pikett’s lineups to be officially recorded
further counsels against their liability for fraud, or for the failure to prevent it.

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                                       No. 11-20906

which can contains the target pad than relying on his dogs to identify the can by
odor.” Id. (internal quotation marks omitted). The expert had added that
Pikett’s actions “were consistent with attempting to induce a behavior, i.e.,
cuing, specifically ‘jerking’ on the dogs’ leashes and strategically stopping as he
paced down the row of cans.” Id. (internal quotation marks omitted). Pikett, by
contrast, had “denie[d] that he cued the dogs or otherwise used procedures that
allowed him to ‘cheat.’” Id.
       Thus, the panel on appeal identified “a sufficient issue of material fact” as
to whether “Pikett [had] made knowing efforts to secure a false identification.”
Id. (citation and internal quotation marks omitted). Such efforts would have
“violate[d] clearly established constitutional rights.” Id. (citation omitted).
Accordingly, the panel reversed the district court’s summary judgment, which
the district court had granted on the basis of qualified immunity. Id.
       In general, the panel concluded that the district court had not abused its
discretion by denying the plaintiff’s request for supplemental FRCP 56(d)
discovery. Id. at *12. However, the panel determined that the district court
should have allowed the plaintiff’s specific request for a report that Pikett had
prepared, in connection with another case, that the plaintiff’s expert had alleged
“was a substantially different version of the same report produced in this case.”
Id. The panel noted that, “[g]iven this potential material discrepancy in a
heavily relied-upon report and the specificity of [the plaintiff’s] request, the
district court should have allowed [the plaintiff] access to the document.” Id.13
       2.     The Parties’ Arguments Concerning the Applicability of
              Winfrey
              a.   Appellants




       13
          This report concerned the drop-trail from the crime scene. Since the instant case did
not involve a drop-trail, the report is inapplicable to the instant case’s disposition.

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                                  No. 11-20906

      Appellants argue that “the Winfrey Court answered a pure question of law
when it credited certain expert reports and concluded that they were sufficient
to create a dispute of fact” as to whether Pikett had manipulated or
misrepresented the results of his lineups. Appellants’ Letter Br. at 2. “Because
that very same issue is now before this Court in a virtually identical fact
pattern,” this Court should rule the same way as to that legal question. Id.
            b.     Appellees
      In response, Appellees argue that “Winfrey reverse[d] the district court’s
grant of summary judgment . . . based upon a narrow evidentiary ruling,”
namely that “the video [was] not in the record on appeal.” FBC Letter Br. at 4
(citation and internal quotation marks omitted). In the instant case, by contrast,
the record on appeal includes videotapes of two of the lineups in question. Id.
      Appellees also repeat the same arguments, provided above in the previous
section, concerning independent corroborating evidence: namely, that Pikett’s
lineups did not cause Appellants any harm “because probable cause would have
existed . . . with or without Pikett’s evidence.” Id. at 5 (citation omitted).
      3.    Analysis
      Here, Winfrey again is distinguishable. In Winfrey, the plaintiff’s expert
submitted a report documenting his review of the dog-scent lineup at issue,
which had been videotaped. The tape itself was not in the record on appeal. In
the instant case, the same expert is participating on behalf of Appellants.
However, unlike in Winfrey, tapes of two of the lineups are in the record on
appeal, and the expert has not reviewed them. The Winfrey panel’s reversal of
summary judgment as to Pikett, for narrow evidentiary reasons, is
distinguishable on that basis alone.
      Furthermore, the particular facts of this case provide no alternative reason
to reverse the district court’s grant of summary judgment. Here, in contrast to
Winfrey, there is independent and untainted evidence—recited in detail

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                                 No. 11-20906

above—corroborating the results of Pikett’s lineups. In light of that evidence,
the tapes alone do not create a genuine issue of fact sufficient to overturn
summary judgment.
      In sum, Winfrey is distinguishable as to the claims against Pikett.
Moreover, the unique facts of this case provide no alternative reason to reverse
summary judgment or the district court’s denial of Appellants’ FRCP 56(d)
request. Accordingly, we affirm the district court’s grant of summary judgment
as to Pikett.
                               VI. Conclusion
      For the foregoing reasons, we AFFIRM the district court’s grant of
summary judgment as to all Appellees.




                                      24
