                                                                         ACCEPTED
                                                                    07-15-00284-CV
                                                       SEVENTH COURT OF APPEALS
                                                                 AMARILLO, TEXAS
                                                              12/17/2015 1:23:16 PM
                                                                   Vivian Long, Clerk


             NO. 07-15-00284-CV

                  IN THE                           FILED IN
                                            7th COURT OF APPEALS
             COURT OF APPEALS                   AMARILLO, TEXAS
         SEVENTH JUDICIAL DISTRICT          12/17/2015 1:23:16 PM
             AMARILLO, TEXAS                      VIVIAN LONG
                                                     CLERK


           ALLEN DWAYNE BATES,
                 Appellant

                    VS.

ELIZABETH ANN BROWN, BLAKE HENCHCLIFFE AND
               JERRY JACKSON,
                  Appellees


         APPEAL IN CAUSE NO 65808-A
         IN THE 47TH DISTRICT COURT
         OF RANDALL COUNTY, TEXAS


            BRIEF OF APPELLEES


                          JAMES A. FARREN
                          Randall County Criminal District Att’y

                          WARREN L. CLARK
                          wclark@randallcounty.org
                          Assistant Criminal District Attorney
                          SBN 04300500
                          2309 Russell Long Boulevard, Suite 120
                          Canyon, Texas 79015
                          Tel. (806) 468-5570
                          Fax (806) 468-5566

                          Attorney for Appellees
                        IDENTITY OF PARTIES AND COUNSEL

PARTIES TO TRIAL COURT JUDGMENT:

Allen Dwayne Bates . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Plaintiff (Appellant)

Elizabeth Ann Brown, Blake Henchcliffe, Jerry Jackson . Defendants (Appellees)

TRIAL AND APPELLATE COUNSEL:

Allen Dwayne Bates . . . . . . . . . . . . . . . . . . . . . . . . . . . Pro Se Plaintiff / Appellant
TDCJ # 1822207
1525 FM 766
Cuero, Texas 77954

Warren L. Clark . . . . . . . . . . . . . . . . . . . . . . . . . . Appellate Counsel for Appellees
Appellate Chief
Assistant Criminal District Attorney
Randall County Criminal District Attorney’s Office
2309 Russell Long Blvd., Suite 120
Canyon, Texas 79015




                                                   ii
                                          TABLE OF CONTENTS

IDENTITY OF PARTIES AND COUNSEL . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ii

TABLE OF CONTENTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iii

INDEX OF AUTHORITIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . v

        State Cases . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . v

        Federal Cases . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . v

        Constitutions And Statutes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . vi

        Rules . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . vii

STATEMENT OF THE CASE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

        A.       Nature Of The Case . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

        B.       Course Of Proceedings and Disposition . . . . . . . . . . . . . . . . . . . . . . . 1

ISSUE PRESENTED . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

STATEMENT OF FACTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

SUMMARY OF THE ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

        Issue: Was dismissal of Plaintiff’s § 1983 action an abuse of discretion? . 5

                 Chapter 14 of the Texas Civil Practice & Remedies Code . . . . . . . . 6

                 Standard of review . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

                 42 U.S.C. § 1983 actions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

                                                            iii
                  False arrest claim brought under § 1983 . . . . . . . . . . . . . . . . . . . . . . 8

                  Liability for false arrest under § 1983 . . . . . . . . . . . . . . . . . . . . . . . . 9

                  Analysis . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

PRAYER . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

CERTIFICATE OF COMPLIANCE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

CERTIFICATE OF SERVICE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15




                                                           iv
                                    INDEX OF AUTHORITIES

CASES:

STATE

Comeaux v. TDCJ,ID, et al, No. 13-11-00446-CV
    (Tex.App.-Corpus Christi January 31, 2013, pet denied) (mem. op.) . . . . . 7

Garrett v. Williams, 250 S.W.3d 154
     (Tex.App.-Fort Worth 2008, no pet.) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6,7

Gordon v. Scott, 6 S.W.3d 365
     (Tex.App.-Beaumont 1999, pet. denied) . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

Hamilton v. Pechacek, 319 S.W.3d 801
     (Tex.App.-Fort Worth 2010, no pet.) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6,7

Leachman v. Dretke, 261 S.W.3d 297
     (Tex.App.-Fort Worth 2008, no pet.) (op. on reh’g) . . . . . . . . . . . . . . . . . . 8

Nabelek v. Dist. Att’y of Harris Co, 290 S.W.3d 222
     (Tex.App.-Houston [14th Dist.] 2005, pet. denied) . . . . . . . . . . . . . . . . . . . . 6

Scott v. Gallagher, 209 S.W.3d 262
       (Tex.App.-Houston [1st Dist.] 2006, no pet.) . . . . . . . . . . . . . . . . . . . . . . . . 7

Vaughn v. Hicks, No. 14-08-00726-CV
     (Tex.App.-Houston [14th Dist.] April 16, 2009, pet. denied)
     (per curiam) (mem. op) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

FEDERAL

Anderson v. Creighton, 483 U.S. 635 (1987) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

Felder v. Casey, 487 U.S. 131 (1988) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8



                                                      v
Franks v.Delaware, 438 U.S. 154 (1978) . . . . . . . . . . . . . . . . . . . . . . . . . . . 9,10,11

Golino v. City of New Haven, 950 F.2d 864 (2nd Cir. 1991),
      cert. denied, 505 U.S. 1221 (1992) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

Lennon v. Miller, 66 F.3d 416 (2nd Cir. 1995) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

Malley v. Briggs, 475 U.S. 335 (1986) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

Saucier v. Katz, 533 U.S. 194 (2001) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

Sherwood v. Mulvihill, 113 F.3d 396 (3rd Cir. 1997) . . . . . . . . . . . . . . . . . . . . . . 10

United States v. Basham, 286 F.3d 1199 (10th Cir. 2001),
      cert. denied, 535 U.S. 945 (2002) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

United States v. Colonna, 360 F.3d 1169 (10th Cir. 2004) . . . . . . . . . . . . . . . . . . 11

United States v. Hammett, 236 F.3d 1054 (9th Cir. 2001),
      cert. denied, 534 U.S. 866 (2001) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

United States v. Jones, 208 F.3d 603 (7th Cir. 2002) . . . . . . . . . . . . . . . . . . . . . . 11

Velardi v. Walsh, 40 F.3d 569 (2nd Cir. 1994) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

Wilson v. Russo, 212 F.3d 781 (3rd Cir. 2000) . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

CONSTITUTIONS AND STATUTES

42 U.S.C. § 1983 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4,8,9,11,12,13

TEX. CIVIL PRAC. & REM. CODE § 14.001 . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

TEX. CIVIL PRAC. & REM. CODE § 14.003 . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

TEX. CIVIL PRAC. & REM. CODE § 14.003(a)(2) . . . . . . . . . . . . . . . . . . . . . 1,13



                                                       vi
TEX. CIVIL PRAC. & REM. CODE § 14.003(b) . . . . . . . . . . . . . . . . . . . . . . . . . 6

TEX. CIVIL PRAC. & REM. CODE § 14.014 . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

RULES

TEX. R. APP. PROC. 38.2(a)(1)(B) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2,3




                                                   vii
                            STATEMENT OF THE CASE

A.    NATURE OF THE CASE

      This is an appeal arising from the trial court’s dismissal order of Plaintiff’s §

1983 action under the authority of TEX. CIVIL PRAC. & REM. CODE § 14.003(a)(2)

wherein the trial court found the lawsuit to be frivolous.

B.    COURSE OF PROCEEDINGS AND DISPOSITION

      On March 11, 2013, Plaintiff filed an original petition and application to

proceed in district court in forma pauperis. (C.R. 4-25) Rather than attempt to obtain

service of process on the three named defendants or engage in meaningful discovery,

Plaintiff initiated a series of correspondence with either the trial court or the district

clerk. Most of these letters requested updates from the Randall County District

Clerk’s Office concerning the “status” of his case. (see e.g. C.R. 26-33) Some of these

letters were directed to the trial court requesting an evidentiary hearing on a variety

of topics or inquiring why service of process had not been accomplished. (see, e.g.

C.R. 45) Plaintiff also directed letters to the court requesting written findings of fact

and conclusions of law. (C.R. 46,52,53)

      The trial court initially entered an order of dismissal, finding Plaintiff’s petition

to be frivolous, on May 12, 2014. (C.R. 43) However, a Nunc Pro Tunc Order of




                                            1
Dismissal was subsequently signed and entered of record on June 16, 2015. (C.R. 56)

It is from this order which Plaintiff has perfected his appeal. (C.R. 57-58)

                               ISSUE PRESENTED

      Based on TEX. R. APP. PROC. 38.2(a)(1)(B), Appellee asserts that the

following is a correct statement of the issue presented:

      Did the trial court abuse its discretion when it dismissed Plaintiff’s Original

      Petition on the finding that Plaintiff’s claim lacked an arguable basis in law

      and therefore, constituted a frivolous lawsuit for purposes of Section 14.003

      of the Texas Civil Practices and Remedies Code?




                                          2
                               NO. 07-15-00284-CV

                                IN THE
                           COURT OF APPEALS
                       SEVENTH JUDICIAL DISTRICT
                           AMARILLO, TEXAS


                          ALLEN DWAYNE BATES,
                                Appellant

                                      VS.

ELIZABETH ANN BROWN, BLAKE HENCHCLIFFE AND JERRY JACKSON,
                        Appellees


                      APPEAL IN CAUSE NO. 65,808-A
                       IN THE 47TH DISTRICT COURT
                      OF RANDALL COUNTY, TEXAS


                           BRIEF OF APPELLEE


TO THE HONORABLE JUSTICES OF THE SEVENTH COURT OF APPEALS:

      Based on TEX. R. APP. PROC. 38.2, Appellees file their brief in the above-

entitled and numbered cause.




                                       3
                             STATEMENT OF FACTS

      Plaintiff’s handwritten original petition for relief is difficult to comprehend.

Its rambling narrative and disjointed phrases make for a hard task insofar as

deciphering exactly what he alleges as facts or theory of recovery. However, since

pro se pleadings are to be reviewed and evaluated by less stringent standards than

those applied to formal pleadings drafted by lawyers, Appellees will give Plaintiff the

benefit of any reasonable doubt. In so doing, it appears that Plaintiff set forth a 42

U.S.C. § 1983 action claiming false arrest. His theory alleged that Appellee Elizabeth

Brown, a detective with the Amarillo Police Department, investigated a case of credit

card abuse involving Plaintiff and caused to be filed an arrest warrant which was

deficient because it was not supported by probable cause.            Amarillo Police

Department officers Henchcliffe and Jackson served this warrant on Plaintiff and took

him into custody at that time. According to Plaintiff’s theory, as best can be

understood, Detective Brown is liable for executing an arrest warrant that was not

supported by probable cause while the two officers who served the supposedly invalid

warrant are vicariously liable as well. Thus, all three should be held responsible for

false arrest. (C.R. 5-12)




                                          4
                          SUMMARY OF THE ARGUMENT

         Taking as true the allegations in Plaintiff’s lawsuit, it cannot be held that the

trial court acted without reference to guiding principle when it concluded that there

was no realistic chance of ultimate success in light of the law of qualified immunity

from any civil liability which all three named defendant-officers would benefit from

under the circumstances set forth in the petition. Moreover, the limited record and

rules of controlling law provide additional grounds supporting the trial court’s

dismissal since the pleadings, even by assuming their accuracy, could not give rise

to an actionable cause of false arrest. At best, the pleadings allege that the warrant

in question was not supported by probable cause, an argument more pertinent to a

theory of evidentiary suppression. As such, this construct merely augments a

circumstance which can never form the basis, as a matter of law, for personal liability

in a section 1983 action. Thus, the trial court was correct in all things by concluding

that Plaintiff’s claim had no arguable basis in law and had no realistic chance of

ultimate success.

                                      ARGUMENT

Issue:         Did the trial court abuse its discretion when it dismissed
               Plaintiff’s Original Petition on the finding that Plaintiff’s
               claim lacked an arguable basis in law and therefore,
               constituted a frivolous lawsuit for purposes of Section
               14.003 of the Texas Civil Practices and Remedies Code?

                                             5
               Chapter 14 of the Civil Practice and Remedies Code

      Inmate litigation is governed by certain procedural rules set forth in chapter 14

of the Civil Practice and Remedies Code. See TEX. CIVIL PRAC. & REM. CODE.

§§ 14.001-.014. The purpose of chapter 14 is to aid the trial court in determining

whether an inmate’s claim is frivolous. Hamilton v. Pechacek, 319 S.W.3d 801, 809

(Tex.App.-Fort Worth 2010, no pet.). A trial court has broad discretion to dismiss an

inmate’s suit as frivolous because “(1) prisoners have a strong incentive to litigate;

(2) the government bears the cost of an in forma pauperis suit; (3) sanctions are not

effective; and (4) the dismissal of unmeritorious claims accrues to the benefit of state

officials, courts, and meritorious claimants.” Nabelek v. Dist. Att’y of Harris Cnty,

290 S.W.3d 222, 228 (Tex.App.-Houston [14th Dist.] 2005, pet. denied); Garrett v.

Williams, 250 S.W.3d 154, 158 (Tex.App.-Fort Worth 2008, no pet.).

      In determining whether a claim is frivolous, the trial court may consider

whether (1) the claim’s realistic chance of ultimate success is slight; (2) the claim has

no arguable basis in law or in fact; (3) it is clear that the party cannot prove facts in

support of the claim or (4) the claim is substantially similar to a previous claim filed

by the inmate because the claim arises from the same operative facts. TEX. CIVIL

PRAC. & REM. CODE § 14.003(b); Nebelek, 290 S.W.3d at 228. There is no

relevant federal case law which preempts chapter 14 dismissals. Thus, the trial court

                                           6
and appellate courts do not abuse its discretion in dismissing § 1983 claims brought

by inmates based on findings that the suits are frivolous. Comeaux v. TDCJ, ID, et al,

No. 13-11-00446-CV at *10-11 (Tex.App.-Corpus Christi January 31, 2013, pet.

denied) (mem. op.); Vaughn v. Hicks, No. 14-08-00726-CV at *3 (Tex.App.-Houston

[14th Dist.] Apr. 16, 2009, pet. denied) (per curiam) (mem. op.)

                                 Standard of review

      Review of a trial court’s dismissal of an inmate’s claim under chapter 14 is for

an abuse of discretion. Hamilton, 319 S.W.3d at 809; Garrett, 250 S.W.3d at 158.

Since the trial court decision consisted solely of consideration of legal principles and

did not include presentation of evidence, the issue on appeal embraces the ultimate

question of whether Appellant’s claim had no arguable basis in law. Whether a claim

has an arguable basis in law is a legal question which is reviewed de novo. Hamilton,

319 S.W.3d at 809. In conducting this de novo review, the reviewing court takes as

true the allegations in the inmate’s petition and reviews that petition to determine

whether, as a matter of law, it stated a cause of action that would authorize relief.

Scott v. Gallagher, 209 S.W.3d 262, 266 (Tex.App.-Houston [1st Dist.] 2006, no pet.).

A claim has no arguable basis in law if it is an “indisputably meritless legal theory.”

Id. If the dismissal is proper under any legal theory, the trial court’s order must be

upheld. Hamilton, 319 S.W.3d at 809.

                                           7
                               42 U.S.C. 1983 actions

      Section 1983 provides a civil cause of action for the deprivation of an

individual’s federal statutory or constitutional rights. 42 U.S.C. § 1983; see Felder

v. Casey, 487 U.S. 131, 139, 108 S.Ct. 2302, 2307 (1988) (explaining that section

1983 “creates a species of liability”). Thus, for a plaintiff to assert a claim under

section 1983, he must show that “(1) the conduct complained of was committed by

a person acting under color of state law, and (2) the conduct deprived [that person]

of rights, privileges, or immunities secured by the Constitution, or the law, of the

United States,” Leachman v. Dretke, 261 S.W.3d 297, 305 (Tex.App.-Fort Worth

2008, no pet.) (op. on reh’g). A section 1983 action will lie against state officials in

their personal or individual capacities. Gordon v. Scott, 6 S.W.3d 365, 369

(Tex.App.-Beaumont 1999, pet. denied).

                     False arrest claim brought under § 1983

      When a law enforcement officer is sued under section 1983, the officer is

entitled to a claim of qualified immunity. Qualified immunity entitles an officer “not

to stand trial or face the other burdens of litigation.” Saucier v. Katz, 533 U.S. 194,

200 (2001). The doctrine is designed to protect “all but the plainly incompetent or

those who knowingly violate the law.” Malley v. Briggs, 475 U.S. 335, 341 (1986).

The rationale behind qualified immunity is two-fold - to permit officers to perform

                                           8
their duties without fear of constantly defending themselves against insubstantial or

fraudulent claims for damages and to allow the public to recover damages where

officers unreasonably invade or violate an individual’s constitutional or federal legal

rights. Lennon v. Miller, 66 F.3d 416, 424 (2nd Cir. 1995). Stated another way, where

law enforcement officers reasonably, yet perhaps mistakenly, violate a person’s

constitutional rights, those “officials - like other officials who act in ways they

reasonably believe to be lawful - should not be held personally liable.” Anderson v.

Creighton, 483 U.S. 635, 641 (1987). Qualified immunity is available for the benefit

of a law enforcement officer who is sued for false arrest under 42 U.S.C. § 1983.

                        Liability for false arrest under § 1983

      Before a search or arrest warrant is issued, the Fourth Amendment requires a

truthful factual showing in the affidavit used to establish probable cause. Franks v.

Delaware, 438 U.S. 154, 165-66 (1978). Because a law enforcement officer is

constitutionally prohibited from making perjurious or recklessly false statements in

support of a warrant, a complaint which specifically alleges that an officer knowingly

filed a false affidavit to secure an arrest or search warrant states a claim under section

1983. see United States v. Basham, 286 F.3d 1199, 1204 (10th Cir. 2001) (“It is a

violation of the Fourth Amendment for an affiant to knowingly and intentionally, or

with reckless disregard for the truth, make a false statement in an affidavit.”), cert.

                                            9
denied, 535 U.S. 945 (2002); Wilson v. Russo, 212 F.3d 781, 786-87 (3rd Cir. 2000).

Where an officer knows, or has reason to know, that he has materially misled a

magistrate on the basis for a finding of probable cause, “the shield of qualified

immunity is lost.” Golino v. City of New Haven, 950 F.2d 864, 871 (2nd Cir. 1991),

cert. denied, 505 U.S. 1221 (1992).

      A plaintiff who makes specific allegations in a § 1983 action regarding

misrepresentations or omissions in the affidavit of probable cause must satisfy the

two-part test developed in Franks v. Delaware. Not only must there be a “substantial

preliminary showing” that the affiant knowingly and deliberately, or with reckless

disregard for the truth, made false statements or omissions that create a falsehood in

applying for the warrant, the plaintiff must also make that same “substantial

preliminary showing” that the false statements or omissions, if any, were “material,

or necessary, to the finding of probable cause.” Sherwood v. Mulvihill, 113 F.3d 396,

399 (3rd Cir. 1997); see also Velardi v. Walsh, 40 F.3d 569, 573 (2nd Cir. 1994).

Merely reciting the mantra of false misrepresentations, omissions or materiality to the

issue of probable cause is insufficient to sustain this pleading burden. Id.

      With regards to false statements, the Supreme Court does not require that all

statements in an affidavit be completely accurate. Instead, the Court simply requires

that the statements be “believed or appropriately accepted by the affiant as true.”

                                          10
Franks, 438 U.S. at 165. Accordingly, “misstatements resulting from negligence or

good faith mistakes [such as good faith reliance on third party representations] will

not invalidate an affidavit which on its face establishes probable cause.” United

States v. Jones, 208 F.3d 603, 607 (7th Cir. 2002); United States v. Hammett, 236 F.3d

1054, 1058 (9th Cir.), cert. denied, 534 U.S. 866 (2001); also see United States v.

Colonna, 360 F.3d 1169, 1174 (10th Cir. 2004) (“However, a misstatement in an

affidavit that is merely the result of simple negligence or inadvertence . . . does not

invalidate a warrant.”).

                                        Analysis

      Rather than attempt to demonstrate why his claim constitutes a valid cause of

action under the elements required under a 42 U.S.C. § 1983 action for false arrest,

Plaintiff recapitulates his claim contained within his original brief; that is, the arrest

warrant prepared by Detective Brown was devoid of probable cause and that his

wrongful arrest was the product of that bad warrant. As best as can be determined,

this argument is divided into six sub-parts:

      •      the original felony complaint was “factually insufficient;”

      •      the arrest was made without probable cause;

      •      the search incident to arrest exceeded the scope of a “Terry” stop;

      •      the magistrate set excessive bail at arraignment after arrest;

                                           11
      •      false imprisonment after the arrest on alleged bad warrant and

      •      Plaintiff was not provided with a fact findings or conclusions of law.

      Accepting as true the essential allegations set out in Plaintiff’s original petition,

as emphasized in his pro se brief, he essentially has presented an argument which,

once again, attacks the factual sufficiency underlying the original arrest warrant and

nothing more. His theory does not allege that Detective Brown knowingly filed a

false affidavit to secure the arrest warrant or that she engaged in material fabrications

or omissions designed to mislead the magistrate on the basis for a finding of probable

cause. Therefore, the petition on its face fails to made the required “substantial

preliminary showing” that Detective Brown knowingly or deliberately, or with

reckless disregard for the truth, made false statements or omissions that created a

falsehood in her application for the arrest warrant. His pleadings likewise failed to

perfect the “substantial preliminary showing” that the false statements or omissions,

if any, were material or necessary to a finding of probable cause to arrest.

      Even assuming the truth of the matter - that the arrest warrant in question was

amenable to a motion to suppress for lack of probable cause - this would in no way

deny Brown the privilege of qualified immunity, further assuming that this kind of

circumstance could even give rise to a § 1983 action. Going one step further, under

no stretch of legal maneuvering could Plaintiff extend § 1983 liability to either of the

                                           12
two officers who served the arrest warrant since the law does not permit that kind of

vicarious liability. Clearly, both would be entitled to qualified immunity in the highly

unlikely event that Plaintiff could somehow concoct a legal theory encompassing

their liability under a false arrest claim pursuant to § 1983. The trial court’s

conclusions on this matter were correct in all things.

      While a pro se claimant should not be held to the otherwise stricter pleading

requirements of licensed attorneys, he is nevertheless bound by the same procedural

and briefing rules. With this in mind, merely making the blanket, conclusory

statement that Brown included a “false statement in her complaint” (C.R. 9) is

insufficient to satisfy the burden required of this particular pro se claimant. The

record reveals that Plaintiff had more than adequate time to supplement his claims,

either through proper amendment or pre-trial discovery, in order to bring the suit in

conformity with the minimal requirements needed in pursuit of this § 1983 action.

Instead, he chose to engage in needless correspondence with court personnel and in

effect, slept on his rights until the dismissal order was entered. This is a classic

example of why unmeritorious claims should be summarily dismissed under the

authority of chapter 14, TEX. CIVIL PRAC. & REM. CODE.




                                          13
                                      PRAYER

      WHEREFORE, Appellee, the State of Texas, respectfully requests that this

Court affirm the trial court’s dismissal order in all respects.

                                               Respectfully submitted,

                                               James A. Farren
                                               Randall County Criminal
                                               District Attorney

                                               Warren L. Clark
                                               Warren L. Clark
                                               Appellate Chief
                                               clarkwl3@gmail.com
                                               wclark@randallcounty.org
                                               Assistant Criminal District Att’y
                                               SBN 04300500

                                               2309 Russell Long Boulevard, Suite 120
                                               Canyon, Texas 79015
                                               Tel. (806) 468-5570
                                               Fax (806) 468-5566



                        CERTIFICATE OF COMPLIANCE

      I hereby certify that the foregoing brief consists of a total of 3,468 words,
prepared with WordPerfect software, 14 point Times New Roman font.

                                               Warren L. Clark
                                               Warren L. Clark




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                         CERTIFICATE OF SERVICE

     I hereby certify that a true and correct copy of the foregoing brief was served
upon Appellant by mailing a copy to Allen Dwayne Bates, TDCJ # 1822207, 1525
FM 766, Cuero, Texas 77954 on this the 17th day of December, 2015.

                                             Warren L. Clark
                                             Warren L. Clark




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