     Case: 08-51231     Document: 00511010135          Page: 1    Date Filed: 01/21/2010




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

                                                  FILED
                                                                          January 21, 2010

                                       No. 08-51231                    Charles R. Fulbruge III
                                                                               Clerk

CHARLES TROIS

                                                   Plaintiff-Appellant
v.

OFFICER RONALD D LONG, JR

                                                   Defendant-Appellee




                   Appeal from the United States District Court
                        for the Western District of Texas
                             USDC No. 1:07-CV-965


Before JOLLY, WIENER, and BARKSDALE, Circuit Judges.
PER CURIAM:*
        Concerning his 2004 arrest for forgery, Charles Trois sued Gillespie
County, Texas, Sheriff's Deputy Ronald Long, under a Fourth Amendment claim
of unlawful seizure, pursuant to 42 U.S.C. § 1983, and a state-law claim for
malicious prosecution. Summary judgment was awarded Deputy Long based on
qualified immunity for the constitutional claim and official immunity for the
state-law claim. AFFIRMED.



        *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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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                                          I.
          In August 2004, at a “swap meet” in Trois’ home, attended by
approximately 50 people, Trois arranged with Michael Rosseau, a fellow trader,
to exchange a number of Trois’ automobile engines for a skid loader owned by
Rosseau.       It was agreed that, although Rosseau would take immediate
possession of the engines, he was to deliver the skid loader seven weeks later.
As security, Rosseau provided a $12,000 check to Trois.
          Because Rosseau did not deliver the skid loader, Trois attempted to cash
the check, dated 15 October 2004. On his first attempt, the bank returned the
check for insufficient funds. On his second attempt, Trois learned Rosseau had
placed a stop-payment order on the check. Therefore, in December 2004, Trois
brought the matter to the attention of the Gillespie County Sheriff’s
Department, where he met with Deputy Long.
          At this meeting, unable to recall the date of the swap meet, Trois looked
at the date of the check, assumed it was dated accurately, and told Deputy Long
that he received it from Rosseau on 15 October 2004. The date, however, was
later determined to have been altered from 2001 to 2004, by converting the “1”
to “4”.
          Deputy Long telephoned Rosseau. In that conversation, Rosseau admitted
he had been in Texas in August, but not October, 2004, denied giving a check to
Trois at that time, and claimed: he gave a check to Trois in October 2001, as
part of a deal at that time; after he delivered the check for this 2001 transaction,
he and Trois changed the deal; instead, they agreed to swap; so, he assumed
Trois had torn up the check; and, accordingly, Trois must have altered the
check’s date.


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                                 No. 08-51231

      When Trois heard Rosseau’s accusations, he told Deputy Long two
witnesses could confirm that Rosseau gave him the check in 2004. He also
informed the Deputy that Rosseau had been convicted of a felony, which the
Deputy later learned was mail fraud.        Upon request, Trois provided a
handwriting sample and furnished Deputy Long with a recording of a telephone
conversation between Trois and Rosseau.      The recording, however, did not
identify a date or involve any discussion of a check. The Deputy told Trois he
would investigate further. Trois then sued Rosseau in state court and obtained
a $50,900 default judgment against him.
      As part of his investigation, Deputy Long retrieved Rosseau’s cell-phone
and bank records, which supported Rosseau’s story. The cell-phone records
revealed that, contrary to Trois’ earlier claim, Rosseau was not in Texas in
October 2004. Further, the bank records showed that the check was part of a
series used by Rosseau in 2001. Laboratory analysis of Trois’ handwriting
sample was inconclusive with respect to whether Trois was responsible for
converting the “1” to a “4” on the check.
      Without speaking to the two witnesses identified by Trois, Deputy Long
delivered the results of his investigation, as further discussed infra, to an
assistant district attorney, who, in November 2005, presented to a grand jury a
case against Trois for forgery. Deputy Long testified before this grand jury,
which indicted Trois. Trois turned himself in and was released the same day.
In June 2007, after Trois passed a polygraph test, the charges against him were
dismissed.
      That November, Trois filed this action against Deputy Long. Trois alleged:
the Deputy maliciously failed to inform the district attorney and grand jury of


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                                  No. 08-51231

the witnesses who would have confirmed both when Rosseau delivered the check
and his criminal history; and Long had failed to inform the district attorney that
Rosseau had a prior conviction for mail fraud.       Pursuant to § 1983, Trois
asserted that Deputy Long caused him to be unreasonably seized in violation of
the Fourth Amendment.        Additionally, he asserted a state-law claim for
malicious prosecution.
      The district court granted summary judgment to Deputy Long on both
claims, holding, inter alia: because the arrest was made pursuant to a valid
grand-jury indictment, Trois failed to allege a violation of a clearly established
constitutional right; and Deputy Long was entitled to qualified immunity for the
constitutional claim and to official immunity for the state-law claim.
                                       II.
      A summary judgment is reviewed de novo, applying the same standards
as the district court. Ontiveros v. City of Rosenberg, 564 F.3d 379, 382 (5th Cir.
2009). Such judgment is appropriate if, viewing any disputed facts in the light
most favorable to the non-movant, there is no genuine issue of material fact and
the movant is entitled to judgment as a matter of law. F ED. R. C IV. P. 56(c).
                                       A.
      For the claim pursuant to § 1983, Deputy Long asserts qualified immunity.
The test for such immunity is “(1) whether the plaintiff has alleged a violation
of a clearly established constitutional right; and (2) if so, whether the
defendant’s conduct was objectively unreasonable in the light of the clearly
established law at the time of the incident”. Domino v. Tex. Dep’t of Crim.
Justice, 239 F.3d 752, 755 (5th Cir. 2001) (quoting Hare v. City of Corinth, 135
F.3d 320, 325 (5th Cir. 1998) (en banc)).


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      A grand-jury indictment establishes probable cause. Gerstein v. Pugh, 420
U.S. 103, 117 n.19 (1975). Once “facts supporting an arrest are placed before an
independent intermediary such as a . . . grand jury, the intermediary’s decision
breaks the chain of causation” for false or unreasonable arrest. Shields v. Twiss,
389 F.3d 142, 150 (5th Cir. 2004) (quoting Taylor v. Gregg, 36 F.3d 453, 456 (5th
Cir. 1994)) (omission in original). On the other hand, the defendant is not
afforded independent-intermediary protection if he maliciously withheld
relevant information, thereby tainting the intermediary’s deliberations. See
Shields, 389 F.3d at 150; Taylor, 36 F.3d at 457.
      As noted, Deputy Long testified before the grand jury. Trois maintains the
Deputy is not entitled to independent-intermediary protection because he failed
to disclose: that Rosseau had previously been convicted for mail fraud; and that
at least two witnesses could verify Rosseau delivered the check to Trois in 2004.
Trois, however, has not presented evidence demonstrating the Deputy
maliciously withheld such information from the grand jury.           In fact, the
summary-judgment record shows that, prior to the grand jury proceeding,
Deputy Long presented the assistant district attorney with Rosseau’s arrest
record and informed him of Rosseau’s conviction for mail fraud.
      To support his position that malice existed, Trois points to a heated
exchange with the Deputy, in which Trois questioned the Deputy’s intelligence
and competence.     Beyond this conversation, Trois can only offer circular
reasoning, contending: the Deputy failed to present the information to the grand
jury because of his malice towards Trois, and the Deputy’s malice towards Trois
is demonstrated by his failure to present evidence to the grand jury. Because
Trois has not presented any evidence that the Deputy maliciously withheld


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                                  No. 08-51231

information from the grand jury, his claim fails to create a genuine issue of
material fact on whether Deputy Long’s actions violated Trois’ constitutional
rights.     Therefore, for that claim, summary judgment based on qualified
immunity was proper.
                                        B.
      Under Texas law, a plaintiff asserting malicious prosecution must
establish:
      (1) the commencement of a criminal prosecution against the
      plaintiff; (2) causation (initiation or procurement) of the action by
      the defendant; (3) termination of the prosecution in the plaintiff’s
      favor; (4) the plaintiff’s innocence; (5) the absence of probable cause
      for the proceedings; (6) malice in filing the charge; and (7) damage
      to the plaintiff.

Richey v. Brookshire Grocery Co., 952 S.W.2d 515, 517 (Tex. 1997). In Texas, a
government employee is entitled to official immunity if: (1) he performed a
discretionary duty (2) within the scope of his authority (3) while acting with
objective good faith. City of Lancaster v. Chambers, 883 S.W.2d 650, 653 (Tex.
1994).
      Consistent with the foregoing concerning qualified immunity, only the
third element of official immunity, good faith, is disputed. An officer acts in good
faith if, regardless of his subjective motivation, “[a] reasonable person in the
defendant’s position could have thought the facts were such that they justified
the defendant’s acts”. City of San Antonio v. Ytuarte, 229 S.W.3d 318, 320 (Tex.
2007) (quoting Chambers, 883 S.W.2d at 657). The test “is one of objective legal
reasonableness and the immunity protects all but the plainly incompetent or
those who knowingly violate the law”. Id. at 321 (internal quotation marks
omitted).

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      Based on the summary-judgment record, Trois fails to create a genuine
issue of material fact on whether a reasonable person in the Deputy’s position
could not have thought the facts justified the Deputy’s actions. Therefore, for the
state-law claim, summary judgment based on official immunity was proper.
                                       III.
      For the foregoing reasons, the judgment is AFFIRMED.




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