Monday, June 29, 2009

Can you smell Mary Cano's Essence

talk and after you acquiesce? stupid.....mail fraud, abuse 0f power, not answer the phone?

What the hell are you getting paid for? to smell the essence? good your dad hated you so mention your family, i dare you to talk.

Thursday, June 25, 2009

E. Malicious Prosecution~John Hubert is Guilty, Guilty,Guilty and fired .

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No. 98-41084


Plaintiff-Appellant-Cross- Appellee,



Defendants-Appellees-Cross- Appellants.


Appeals from the United States District Court

for the Southern District of Texas


January 26, 2000

Before GARWOOD, SMITH, and BENAVIDES, Circuit Judges.

BENAVIDES, Circuit Judge:

Appellant William W. Goodson ("Goodson") appeals from thedistrict court's grant of summary judgment in favor of appelleesCity of Corpus Christi ("The City"), City of Corpus ChristiPolice Department, the Police Chief, and Officers B.J. Gaines("Gaines") and F.V. Perez ("Perez") (collectively "Appellees") onhis 42 U.S.C. � 1983 claims. The appellees also cross-appeal,asking for summary judgment, instead of remand to state court, onGoodson's state law claims. Because the district court drewconclusions of law from disputed facts, we reverse and remand.

I. Factual and Procedural Background

At approximately 11:20pm, on April 23, 1995, Gaines heard aBOLO ("be on the look out") for a white male, approximately sixfeet tall, heavy-set, and dressed like a cowboy, possibly headingto a cowboy bar. The suspect had been involved in a familyassault on Violet Road, in Corpus Christi, Texas.

When Gaines heard the BOLO, he was en route to investigate acomplaint about loud music at a bar near Leopard and MainStreets. Perez accompanied him in a separate car as back-up. After hearing the BOLO, Gaines noticed the hapless Goodsonwalking along Leopard Street. Goodson, who is 5' 10" and weighed260 pounds at the time, (1) wore a paint-splattered long-sleevebutton-down shirt, khaki pants and a baseball hat. The partiesdispute whether he wore boots and a belt; Goodson claims to haveworn velcro tennis shoes and no belt. At this initial siting,Goodson was approximately 3 miles from Violet Road, about half amile from the Whataburger-where he was heading to have a cup ofcoffee and call his brother for a ride home-and in the vicinityof The Frontier, a cowboy bar.

Gaines and Perez continued to their call on Leopard and MainStreets, determined that the music was within lawful decibellevels, and returned about 10 minutes later to the corner ofLeopard and Rand Morgan Streets, where Goodson was crossing themedian on his way to the Whataburger across the street.

The parties dispute virtually every aspect of the ensuinginteraction. According to Gaines, he turned on the flashinglights on his police car, exited the vehicle and approachedGoodson. Gaines says he asked Goodson for identification, whichGoodson failed to produce. Instead, Goodson asked if he wasunder arrest. Gaines testified that he told Goodson that he wasbeing detained because he matched the description of a suspectand again requested identification. Gaines alleges that Goodsonagain refused to show identification and spoke in a loud andbelligerent tone. Gaines responded by telling Goodson to placehis hands on the police car so Gaines could frisk him. To this,Gaines says Goodson responded, not by complying, but by asking,again, whether he was under arrest. Gaines states that herepeated that he was merely detaining Goodson and directed him toplace his hands on the car. At this point, Gaines testified,Goodson began moving away, so Gaines grabbed his arm. Goodsonyanked his arm away, turned and fled about 40 feet before Gainesand Perez, who gave chase, tackled him.

Goodson, on the other hand, claims that he voluntarilywalked toward Gaines' car as he headed to the Whataburger. Heinsists that Gaines at no point asked for identification or toldGoodson that he was a suspect in an assault. Rather, Goodsonmaintains that as he approached Gaines, Gaines barked at him toput his hands on Gaines' car. Goodson claims he was startled andasked if he was under arrest. Goodson testified that Gaines toldhim that he was being detained and to put his hands on the car. Before Goodson could comply, he alleges, Gaines grabbed his arm. Goodson stated that he pulled his arm away from Gaines insurprise and stumbled back in an attempt to regain his balanceand maintain a little distance from the police officers. At thatpoint, Goodson claims, Gaines hit his body and Perez grabbed hislegs, and the two felled him with their tackle.

The parties agree that Gaines and Perez broke Goodson'sshoulder when they tackled him. Goodson testified that he knewhis arm was broken immediately because he heard it crack when hehit the ground. Gaines and Perez rolled Goodson over to placehim in handcuffs. Goodson told them his shoulder was broken, butthey nevertheless jerked his arm back and cuffed him. While theywere doing this, one of the officers yelled, "We'll teach you torun from us, you son of a bitch."

At 11:52pm, Gaines radioed the police station and reportedthat Goodson was hurt. Only a minute earlier, Officer ChrisLynch, who had issued the initial BOLO for a tall, heavy-setwhite man dressed like a cowboy, radioed that he had apprehendedthe suspect in question at The Cowboy, a bar approximately eightmiles from the corner of Leopard and Rand Morgan Streets.

Goodson spent 8 days in the hospital, at a cost of almost$32,000. He needed a plate and screws inserted into hisshoulder, and he will likely need his entire shoulder replaced inthe future. As a result of his injury, he missed a year of work.

On May 16, 1995, through a letter written by his attorney,Goodson advised the City of his injury and claim. The Cityresponded by prosecuting Goodson for evading detention orarrest. (2) The City filed its complaint on July 13, 1995. Policeofficers arrested Goodson for this crime on November 10, 1995,while he was at a job interview. The prosecutor eventuallydismissed the case on February 24, 1997.

On April 7, 1997, Goodson filed this action in state court,alleging, inter alia , unlawful detention, illegal arrest,excessive force, malicious prosecution, improper training andsupervision, and tolerance of a pattern and practice of excessiveforce in violation of � 1983. The appellees removed this case tofederal court on May 14, 1997. The district court issued itsorder granting summary judgment on July 31, 1998.

The district court found that Goodson met the description inthe BOLO. It therefore held that Gaines and Perez had reasonablesuspicion to stop Goodson, and granted Gaines and Perez qualifiedimmunity on the unlawful detention claim.

The district court also found that Goodson pulled his armaway from Gaines and stepped away from the officers; thus, theofficers had probable cause to believe that Goodson was evading alawful detention, and qualified immunity likewise shielded Perezand Gaines from the illegal arrest claim.

The district court further held that Gaines and Perez didnot use excessive force when they tackled or handcuffed Goodsonso that qualified immunity protected them from liability forGoodson's injury in that respect as well.

Because the district court found that Gaines and Perez actedwith probable cause when they arrested Goodson, the lower courtgranted the City summary judgment on that claim. It also grantedthe City summary judgment on Goodson's other claims because theCity could not be liable for improper training and supervision orfor tolerating a pattern and practice of excessive force ifGaines and Perez had committed no constitutional violations.

Goodson timely filed this appeal.

II. Standard of Review

We apply de novo review to summary judgment motions andevaluate the case under the same standards employed by thedistrict court. See Shakelford v. Deloitte & Touche, LLP , 190F.3d 398, 403 (5th Cir. 1999).

The district court should grant summary judgment where "thepleadings, depositions, answers to interrogatories, andadmissions on file, together with the affidavits, if any, showthat there is no genuine issue as to any material fact and thatthe moving party is entitled to judgment as a matter of law." Fed. R. Civ. Proc. 56(c); see also Christopher Village, LP v.Retsinas , 190 F.3d 310, 314 (5th Cir. 1999). "An issue isgenuine if the evidence is sufficient for a reasonable jury toreturn a verdict for the nonmoving party." Owsley v. San AntonioIndep. Sch. Dist. , 187 F.3d 521, 523 (5th Cir. 1999), petition for cert. filed (Jan. 18, 2000) (No. 99-1205). "Although weconsider the evidence and all reasonable inferences to be drawn

therefrom in the light most favorable to the nonmovant, thenonmoving party may not rest on the mere allegations or denialsof its pleadings, but must respond by setting forth specificfacts indicating a genuine issue for trial." Rushing v. KansasCity S. Ry. Co. , 185 F.3d 496, 505 (5th Cir. 1999), petition for cert. filed (Dec. 28, 1999) (No. 99-1090). III. Discussion

Goodson claims that the district court erred when itconcluded that he had not produced sufficient evidence to survivesummary judgment on the qualified immunity issue. Goodson alsoargues that the district court erred when it decided that Goodsonhad not shown a genuine issue of material fact on the issue ofprobable cause, which is critical to his malicious prosecutionclaim. Finally, Goodson maintains that the district court erredwhen it denied Goodson further discovery on his claims againstCity and, instead, dismissed those claims.

Gaines and Perez counter that they are entitled to qualifiedimmunity because they had reasonable suspicion for the initialstop and probable cause for the arrest, and they did not useexcessive force. The City argues that the district courtcorrectly concluded that, because Gaines and Perez acted withprobable cause, the malicious prosecution claim fails. Finally,the Appellees insist that the district court erred when itremanded the state law claims rather than granting the appelleesthe summary judgment to which, they insist, they are entitled. A. Qualified Immunity

In considering Gaines and Perez's qualified immunity claim,we must remain cognizant of the fact that the "qualified . . .immunity doctrine was established to reconcile two competinginterests. One interest is the compensation of persons whosefederally protected rights have been violated. Opposing this isthe fear that personal liability will inhibit public officials inthe discharge of their duties." Johnston v. City of Houston , 14F.3d 1056, 1059 (5th Cir. 1994). For that reason, "governmentofficials performing discretionary functions generally areshielded from liability for civil damages insofar as theirconduct does not violate clearly established statutory orconstitutional rights of which a reasonable person would haveknown." Harlow v. Fitzgerald , 457 U.S. 800, 818 (1982); see also Wilson v. Layne , 119 S. Ct. 1692, 1699 (1999). The doctrine isgenerally available to government officials sued, as Gaines andPerez here are, under � 1983. See Johnston , 14 F.3d at 1059.

The Supreme Court enunciated a two-prong test to ascertainthe viability of a government official's assertion of qualifiedimmunity in Siegert v. Gilley , 500 U.S. 226 (1991). First, wemust examine whether the "plaintiff has alleged a violation of aclearly established right." Fontenot v. Cormier , 56 F.3d 669,673 (5th Cir. 1995); see also Siegert , 500 U.S. at 231.

Second, we must ask whether the defendants' conduct wasobjectively reasonable in light of "clearly established" law atthe time of the alleged violation. Siegert , 500 U.S. at 231-32; see also Kelly v. Foti , 77 F.3d 819, 821 (5th Cir. 1995). "Objective reasonableness is a matter of law for the courts todecide[.]" Williams v. Bramer , 180 F.3d 699, 702 (5th Cir.1999). The touchstone of this inquiry is whether a reasonableperson would have believed that his conduct conformed to theconstitutional standard in light of the information available tohim and the clearly established law. See Gutierrez v. City ofSan Antonio , 139 F.3d 441, 447 (5th Cir.1998). Therefore,"[e]ven law enforcement officials who 'reasonably but mistakenly[commit a constitutional violation]' are entitled to immunity." Hunter v. Bryant , 502 U.S. 224, 227 (1991) (quoting Anderson v.Creighton , 483 U.S. 635, 641 (1987)). In terms of law being"clearly established," "[t]he contours of the right must besufficiently clear that a reasonable official would understandthat what he is doing violates that right." Anderson , 483 640; see also Wilson , 119 S. Ct. at 1699.

As we explain below, we find that Goodson alleged aviolation of his clearly established rights to be free fromseizure without reasonable suspicion, arrest without probablecause and excessive force, and that a genuine issue of materialfact exists as to whether Gaines and Perez's conduct wasobjectively reasonable under the circumstances. We thereforehold that, because of the disputed facts, Gaines and Perez arenot entitled to qualified immunity as a matter of law.

B. Reasonable Suspicion for Detention

Pursuant to Terry v. Ohio , 392 U.S. 1, 30 (1968), policeofficers may stop and briefly detain an individual forinvestigative purposes if they have reasonable suspicion thatcriminal activity is afoot. "Reasonable suspicion must besupported by particular and articulable facts, which, takentogether with rational inferences from those facts, reasonablywarrant an intrusion." United States v. Michelletti , 13 F.3d838, 840 (5th Cir. 1994) (en banc). "The officer, of course,must be able to articulate something more than an 'inchoate andunparticularized . . . "hunch"'. The Fourth Amendment requires'some minimal level of objective justification' for making thestop." United States v. Sokolow , 490 U.S. 1, 7 (1989) (citationsomitted). Nevertheless, "[t]his reasonable suspicion standard isless demanding than the probable cause standard[.]" UnitedStates v. Sanders , 994 F.2d 200, 203 (5th Cir. 1993).

"The presence or absence of reasonable suspicion must bedetermined in light of the totality of the circumstancesconfronting a police officer, including all information availableto the officer at the time of the decision to stop a person." United States v. Silva , 957 F.2d 157, 160 (5th Cir. 1992). "Factors that ordinarily constitute innocent behavior may providea composite picture sufficient to raise reasonable suspicion inthe minds of experienced officers[.]" United States v. Holloway ,962 F.2d 451, 459 (5th Cir. 1992).

Reasonable suspicion is a question of law, to which we applyde novo review. Silva , 957 F.2d at 159.

Here, the precise issue is whether Goodson's physicalappearance fit the description of the BOLO sufficiently to giverise to reasonable suspicion that he was the suspected assailant. We hold that, because Goodson's physical appearance is a disputedissue of fact, the district court could not make a determinationof reasonable suspicion on summary judgment. (3)

The BOLO gave reasonable suspicion to stop and, because ofthe violent nature of the suspected crime, frisk a tall, heavy-set, white man dressed as a cowboy. To have reasonable suspicionto stop and frisk Goodson based on the BOLO, Gaines would have toharbor a reasonable belief that Goodson matched the descriptionin the BOLO. If Goodson was dressed as he claims-in a paint-splattered, long-sleeved button-down shirt, khaki pants, no belt,velcro tennis shoes, and a baseball cap-then he would not havebeen dressed as a cowboy and would have matched the BOLO in onlythe vaguest of its terms. (4) The BOLO would not give Gainesreasonable suspicion to stop and frisk any tall, heavy-set, whiteman. Such a description would simply be too vague, and fit toomany people, to constitute particular, articulable facts on whichto base reasonable suspicion. See United States v. Jones , 619F.2d 494, 497-98 (5th Cir. 1980) (finding no reasonable suspicionwhere the suspect matched the following partial description:"black male, 5 feet 6 inches to 5 feet 9 inches tall and weighingbetween 150 and 180 pounds, with a medium afro hair style, whowas wearing jeans and a long denim jacket."); United States v.Rias , 524 F.2d 118, 121 (5th Cir. 1975) (finding no reasonablesuspicion where the suspects matched the following description:two black men driving a black or blue Chevrolet).

Moreover, reasonable suspicion derives from particular,articulable facts and the inferences from those facts. IfGoodson was dressed as he claims, at least two inferences thatGaines would have had to draw from Goodson's physical presencefurther undercut any reasonable suspicion that Goodson committedthe assault on Violet Road. First, to have been the assailant,Goodson must have changed his clothing between Violet Road andLeopard Street. Such behavior would be very strange from someonewho reportedly was heading to another cowboy bar.

Second, the assailant described by the BOLO allegedly threwhis wife out of his car. Yet Goodson was walking along adesolate street, something he hardly would be doing if he had acar. (5) Therefore, to conclude that Goodson matched the BOLO,Gaines would have to infer that Goodson parked or left his carsomewhere and began walking in a direction away from the nearestcowboy bar on a deserted street-behavior, again, that would beexceptional from an individual reportedly headed to a cowboy bar. On the other hand, if Goodson was dressed as Gainesclaims-in a long-sleeved button down shirt, khakis, cowboy boots,a belt with an over-sized belt buckle, and a baseball cap-thenGoodson would have met the description in the BOLO withsufficient specificity to give rise to reasonable suspicion tostop and frisk him. The factual dispute over Goodson's physicalappearance is thus crucial to the issue of qualified immunity. (6)

Additionally, one other factual dispute bears on thequestion of reasonable suspicion. Gaines alleges that he askedGoodson for identification twice and told Goodson that he was asuspect in an assault. Goodson's belligerent response andrefusal to identify himself, Gaines says, is what led Gaines tofrisk him. Goodson, on the other hand, claims that Gaines firstsought to frisk him and never asked for identification orrevealed that Goodson might be a suspect in an assault. (7) To havereasonable suspicion to frisk Goodson, Gaines would have to pointto particular, articulable facts indicating that Goodson wasarmed or posed a danger. See Sanders , 994 F.2d at 203 ("A policeofficer may conduct such a limited search if 'a reasonablyprudent [person] in the circumstances would be warranted in thebelief that his safety or that of others was in danger.'"(quoting Terry , 392 U.S. at 27)). If Goodson met the descriptionin the BOLO, then Gaines would have reasonable suspicion tosuspect Goodson of having committed an assault, and wouldtherefore have reasonable suspicion to frisk him.

If Goodson did not match the BOLO with sufficientspecificity, however, Gaines could not rely on the BOLO toprovide reasonable suspicion to frisk Goodson. (8) Gaines couldapproach Goodson, as he could approach anyone on the street, andask permission to ask questions or ask for identification. See Florida v. Bostick , 501 U.S. 429, 435 (1991) ("[E]ven whenofficers have no basis for suspecting a particular individual,they may generally ask questions of that individual . . . [and]ask to examine the individual's identification . . . as long asthe police do not convey a message that compliance with theirrequest is required." (citations omitted)); United States v.Cooper , 43 F.3d 40, 145 (5th Cir. 1995) ("[A] consensualencounter . . . . may be initiated by the police without anyobjective level of suspicion."). Gaines could not, however,begin his encounter with Goodson by frisking him. (9) Therefore, ifGaines did ask for identification and Goodson refused, thenGoodson's physical appearance has less bearing on the issue ofqualified immunity; if, however, Gaines sought, withoutpreliminary questioning, to frisk Goodson, then Gaines would haveto have had reasonable suspicion, and Goodson's physicalappearance is of paramount importance.

The factual disputes over Goodson's attire and Gaines'sinitial remarks are therefore critical to the question ofqualified immunity. Though Goodson has clearly alleged a stopand frisk without reasonable suspicion, we are unable todetermine whether Gaines acted in an objectively reasonablemanner without resolving these factual disputes.

The lower court erred when it focused too closely on thefact that reasonable suspicion is a question of law. This isobviously true, but, even though the district court willdetermine at trial as a matter of law whether reasonablesuspicion existed, the district court cannot draw conclusions oflaw from disputed facts at the summary judgment phase. Thisprinciple was set forth in Johnston v. City of Houston , 14 F.3dat 1056, which squarely controls this case. There, we rejectedthe defendant's claim to summary judgment on the qualifiedimmunity issue because "[d]ivergent versions of what happenedhave been offered by Appellants and Johnston." Id. at 1058. Weheld that, because "a genuine dispute as to the material andoperative facts of this case exists, . . . . [s]ummary judgmentis inappropriate unless plaintiff's version of the violationsdoes not implicate clearly established law." Id. at 1061. See also Hart v. O'Brien , 127 F.3d 424, 432 (5th Cir. 1997) ("[W]ewill not consider disputed facts in determining whether theofficers had, or reasonably believed that they had, probablecause to search Hart's home or to arrest her."); Mangieri v.Clifton , 29 F.3d 1012, 1016 n.6 (5th Cir. 1994); Lampkin v. Cityof Nacogdoches , 7 F.3d 430, 435 (5th Cir. 1993).

Goodson has submitted sufficient evidence suggesting that hewas not dressed like a cowboy and that Gaines attempted to friskhim without any preliminary questioning to survive summaryjudgment on this aspect of the issue of qualified immunity. Whether Goodson's evidence is more credible than Gaines's is aquestion for the trier of fact. On summary judgment, we do notmake such determinations; rather, we view the evidence in thelight most favorable to the non-movant, here Goodson. Wetherefore reverse the district court's grant of qualifiedimmunity on this issue and remand for a trial on the merits.

We caution that our holding today is extremely narrow. Weexpress no opinion as to whether Gaines and Perez acted in anobjectively reasonable manner or whether they ultimately will beentitled to qualified immunity. Our only holding is that wecannot tell, at the summary judgment stage of the case where wemust view the evidence in the light most favorable to Goodson,whether Gaines and Perez acted in an objectively reasonablemanner. At trial, however, "a very different picture may resultthan the one painted by the summary judgment record because[Goodson] must prove the issues that this opinion assumes in hisfavor, and the jury can choose to credit certain facts overothers, which we cannot do in reviewing a denial of summaryjudgment." Gutierrez , 139 F.3d 451.

C. Probable Cause for Arrest

"Probable cause is present 'when the totality of the factsand circumstances within a police officer's knowledge at themoment of arrest are sufficient for a reasonable person toconclude that the suspect had committed or was committing anoffense.'" Vance v. Nunnery , 137 F.3d 270, 276 (5th Cir. 1998)(quoting United States v. Levine , 80 F.3d 129, 132 (5th Cir.1996)). Gaines and Perez are entitled to qualified immunity fortheir arrest of Goodson if a reasonable person in their positioncould have believed he had probable cause to arrest Goodson forthe crime of evading detention or arrest.

The statute pursuant to which Gaines and Perez arrestedGoodson states, "A person commits an offense if he intentionallyflees from a person he knows is a peace officer attemptinglawfully to arrest or detain him." Tex. Penal Code � 38.04(a). The parties dispute whether Goodson fled. But that dispute isnot dispositive of the qualified immunity question at thismoment. Rather, the pressing issue is whether Gaines and Perezcould have reasonably believed that their detention of Goodsonwas lawful. Obviously, if the detention was not lawful, theneven if Goodson fled, Gaines and Perez would not have hadprobable cause to believe that Goodson was violating � 38.04(a). Only if the detention was lawful does the dispute over whetherGoodson fled become relevant.

Therefore, a genuine issue of material fact exists on thequestion of whether Gaines and Perez could have reasonablybelieved that their detention of Goodson was lawful. Just asthat dispute foreclosed summary judgment on the qualifiedimmunity issue for the reasonable suspicion claim, it likewiseprevents a summary judgment grant of qualified immunity on theprobable cause claim. We thus reverse the district court andremand for a trial on the merits of the probable cause claim.

D. Excessive Force

In the Fifth Circuit, to succeed on an excessive forceclaim, the plaintiff bears the burden of showing: "(1) an injury(2) which resulted directly and only from the use of force thatwas clearly excessive to the need and (3) the force used wasobjectively unreasonable." Williams , 180 F.3d at 703.

Goodson has produced sufficient summary judgment evidence tosuggest that he suffered a broken shoulder as a result of beingtackled by Gaines and Perez, who lacked reasonable suspicion todetain or frisk him and from whom he was not fleeing. A factissue therefore exists as to the objective reasonableness of theforce used. We therefore reverse the district court's grant ofqualified immunity in favor of Gaines and Perez and remand for atrial on the merits.

E. Malicious Prosecution

"The constitutional right to be free from bad faith ormalicious prosecution is 'sufficient to support a damage judgmentagainst state law enforcement officials under 42 U.S.C. � 1983.'" Sanders v. English , 950 F.2d 1152, 1163 (5th Cir. 1992) (quoting Hand v. Gary , 838 F.2d 1420, 1424 (5th Cir. 1988)). The elementsof a malicious prosecution claim are: (1) the state commences acriminal prosecution against the plaintiff; (2) the defendantscaused or aided the prosecution; (3) the prosecution terminatedin plaintiff's favor; (4) the plaintiff was innocent; (5) thedefendants acted without probable cause; (6) the defendants actedwith malice; and (7) the criminal proceeding damaged theplaintiff. See Kerr v. Lyford , 171 F.3d 330, 340 (5th Cir.1999); Hayter , 154 F.3d at 275.

The parties only dispute element five: lack of probablecause. The City argues that because Gaines and Perez hadprobable cause to arrest Goodson, it cannot be liable formalicious prosecution. For the reasons stated above, whetherGaines and Perez had probable cause depends upon disputed factsthat preclude a grant of summary judgment in the City's favor onthe malicious prosecution claim. We therefore reverse thedistrict court on this claim and remand for a trial on themerits.

F. Improper Training and Supervision

The district court concluded that, because Gaines and Perezhad committed no constitutional violations, no cause of actionfor improper training and supervision or tolerating a pattern andpractice of excessive force could lie against the City. Thedistrict court therefore denied Goodson discovery on theseclaims. Because we reverse the district court's grant ofqualified immunity to Gaines and Perez, we must also remandGoodson's claim against the City for additional discovery.

G. State Law Claims

We review discretionary remands pursuant to 28 U.S.C. � 1367for an abuse of discretion. See Kennedy v. Texas Utilities , 179F.3d 258, 265 (5th Cir. 1999). District courts, as the lowercourt in this case did, "may remand supplemental state law claimswhen [they have] dismissed the claims that provide the basis fororiginal jurisdiction." Giles v. Nylcare Health Plans, Inc. , 172F.3d 332, 339 (5th Cir. 1999). However, where a district courterroneously dismisses the claims providing original jurisdiction,for instance, by improperly granting summary judgment, it abusesits discretion in remanding the state law claims. See Kennedy ,179 F.3d at 165. Because we reverse the district court's grantof summary judgment on the federal claims, we likewise reverseits remand to state court of the state law claims, and we remandto the district court for a trial on the merits.

IV. Conclusion

Because the district court improperly drew legal conclusionsfrom disputed facts, we reverse its grant of qualified immunityon summary judgment in favor of Gaines and Perez on the issues ofunlawful detention, illegal arrest and excessive force, and weremand those causes of action for a trial on the merits.

Similarly, the district court erred when it dismissedGoodson's malicious prosecution claim on the ground that Gainesand Perez had probable cause to arrest Goodson. We thereforereverse and remand for a trial on the merits.

Moreover, the district court erred when it concluded that noliability could lie against the City because Gaines and Perez hadcommitted no constitutional violation. We thus reverse andremand those claims for additional discovery.

Finally, the district court abused its discretion when itremanded the state law claims on the basis of an erroneousdismissal of all the claims that provided original jurisdiction. We therefore reverse the district court's remand to state courtof the state law claims and remand for a trial on the merits.


1. 1 Goodson has lost a significant amount of weight since his injury.

2. 2 The record contains conflicting information as to whether the charge wasevading detention or arrest. The complaint, filed on July 13, 1995, accusesGoodson of evading detention, but the dismissal of his case, on February 24,1997, names the charge as evading arrest. The statutory section governing thetwo crimes is identical. See Tex. Penal Code � 38.04(a).

3. 3 We emphasize that we are not confronted with a judicial determination ofreasonable suspicion made in the context of a suppression hearing. Whenreviewing reasonable suspicion determinations made during suppressionhearings, we apply clear error review to the facts and view the facts in thelight most favorable to the prevailing party. See United States v. Nichols ,142 F.3d 857, 864-65 (5th Cir. 1998), cert. denied , 525 U.S. 1056 (1998). Here, we apply de novo review to the facts and view them in the light mostfavorable to the non-movant. See Rushing , 185 F.3d at 505.

4. 4 The lower court made much of the fact that Goodson weighed 260 pounds atthe time of the incident. As the district court stated during the summaryjudgment hearing, "[T]here's just not a whole lot of 260-pound guys walkingaround." But the BOLO did not direct Gaines to look for a 260 pound man, oreven a particularly large man. According to Gaines's affidavit, the BOLOmerely stated that the suspect was "heavy-set." Thus, even if Goodson's sizewas a uniquely distinguishing factor, it was not one that would give rise toreasonable suspicion based on the BOLO.

5. 5 Gaines says he first saw Goodson walking next to a car, which Gainesassumed that Goodson had just parked, on his way to The Frontier. But anyreasonable police officer, upon encountering Goodson again, still on foot, ahalf-mile from the car, traveling away from The Frontier and to theWhataburger, would realize that either this assumption was incorrect orGoodson was not the man described in the BOLO.

6. 6 The appellants argue that the similarity between the facts at hand andthose in United States v. Sanders warrant summary judgment in their favor. Wedisagree. In Sanders , a grocery store owner called the police complainingthat a black male, wearing a tan jacket and blue baseball cap, was armed andbehaving suspiciously on the premises. An officer arrived on the scene within3 minutes and saw approximately 10 people outside the store, includingSanders, who alone met the grocer's description. Sanders turned and beganwalking away as soon as the police arrived. The officer drew his weapon, tookcover, and told Sanders to stop. Another officer handcuffed Sanders and founda loaded gun in his pocket. See 994 F.2d at 201-02.

Here, unlike in Sanders , the officers confronted a man who matched thedescription of the suspect in only the vaguest of its terms; the BOLO did notsuggest that the suspect was armed; at least ten minutes elapsed between thetime when the officers first saw Goodson and when they stopped him, givingthem far more time to assess their options; and the street was empty,eliminating the danger of harming bystanders. Given the multitude ofdifference regarding the critical facts, Sanders does not mandate summaryjudgment on the appellants' behalf.

7. 7 Perez, the only other person on the scene, stood by his own patrol carduring the initial exchange and thus did not hear it.

8. 8 Gaines emphasizes that Goodson was both taller and heavier than Gainesor Perez, that the three stood on a deserted street, at night, and that Gainescould not tell if Goodson was armed. Yet none of these factors give rise toreasonable suspicion to frisk Goodson. Neither Gaines nor any other policeofficer could reasonably believe that he could frisk anyone, at night, on adeserted street, simply because the person was taller and heavier than thepolice officer.

9. 9 The appellants at no point argued that Gaines did not need reasonablesuspicion to stop Goodson and ask for his identification; rather, they haveconsistently relied on the argument that, despite the fact that Gaines hadreasonable suspicion, he first asked Goodson for identification. Therefore,they have waived any argument, on this appeal, that reasonable suspicion wasunnecessary to stop Goodson and ask for his identification. See Yohey v.Collins , 985 F.2d 222, 224-25 (5th Cir. 1993) ("Yohey has abandoned thesearguments by failing to argue them in the body of his brief.").

Saturday, June 20, 2009

Taxpayers pay for the worthless loser who will not even come to the phone........waste of your taxes

Taxpayers pay for the worthless loser who will not even come to the phone........waste of your taxes
The record reflects that the trial court heard Gearhart's discovery motion regarding production of the videotape from the arresting officer's squad car and any audiotape of the emergency call made by the convenience store clerk. The State responded that it had no such evidence in its custody or control. The trial court ruled it would permit Gearhart to subpoena any relevant videotapes or audiotapes for trial. Thus, the record reflects that the trial court did not make any ruling adverse to Gearhart. See Tex. R. App. P. 33.1. ~Then where is the states evidence?

Kings Inn where the Huberts dine on taxpayers dime: Governor Perry Our Official Objection To the Appointment of John Hubert (not
even for Dog Catcher)

*Posted by kingalonzoalvarezdepineda13 on September 1, 2007 at 5:29
a.m. (Suggest
removal )*

This man John Hubert is not fit to serve the people. He is a malicious
prosecutor. Next week a Federal Lawsuit will be filed against the 105th
District, Kleberg County, City of Kingsville, John Hubert alleging Civil
Rights Violations, prosecution for personal interests, abuse of power,
official oppression, falsifying documents, malicious prosecution, jury
tampering with more to be listed upon the filing of the lawsuit next week.
It is posible that this case will evolve into a class action lawsuit to
engulf the Uranium Processing, the groundwater contamination and the
complicity of Gov Rick Perry, Kleberg County, and the City of Kingsville.

A Tickler Of Events To Come!

*Posted by dannoynted1 on September 1, 2007 at 5:34 a.m. (Suggest

Carlos Valdez fired this joke.

Hubert fabricated evidence, lies to a jury and prosecutes based on
"personal" vendettas.

Too bad his very own words will be soon catching up to him and his ilk.

Perry, you are so sweet, thank you, and on a silver platter just for all the
world to see.

Hubert: "your Honor I'm gonna have to spend the rest of the summer in the

Chiuminatto: "Don't insult the intelligence of this court"

Oh Kingsville, this will be a menace to your society.

*Posted by dannoynted1 on September 1, 2007 at 6:18 a.m. (Suggest

Poor Gearhart he is prison thanks to this vindictive prevaricator.

*Posted by dannoynted1 on September 1, 2007 at 6:22 a.m.*

*(This comment was removed by the site staff.)*

*Posted by laird30 on September 1, 2007 at 7:51 a.m. (Suggest

Sounds like sour grapes or druggies on the lame.

Hubert is a great young man.

Sorry if you have cannon obey the laws of this country folks.


*Posted by fish2026 on September 1, 2007 at 7:58 a.m. (Suggest

I don't know this prosecutor, and only rarely do a case in Kingsville. I'm
certainly not a big fan of Rick Perry- he's a mediocre governor at best.

On the other hand after reading the immature dribble that dannynted wrote
its clear to see WHO is the one with problems.

Kingalonzo - If you're telling the truth - please email me a copy of the
pleadings with all the allegations you claim

If its going to be filed next week, then they should be substantially ready
by now, and you seem to know all the allegations.

I'm skeptical of what you write but here's a chance to prove you're not just

*Posted by kingalonzoalvarezdepineda13 on September 1, 2007 at 8 a.m. (Suggest
removal )*

John Hubert is not a great young man. If you would like to view the
documentation I will be happy to discuss it with you. Should you decline, it
is recommended that you stay out of the way. John Hubert maliciously
prosecuted my wife and even admitted to her attorney Fred Jimenez that it
was personal. He said, "You're damn right it's personal"!

Now, I believe there is a canon against that type of behavior and abuse of

How bout it James?


*Posted by fish2026 on September 1, 2007 at 8:01 a.m. (Suggest

Aransas County remains - perhaps the largest county in the state ( that has
not attempted to obtain their own DA. The state pays the DA salary and part
of the office expense and there's grant money available. One of Aransas'
commissioners said he was going to study it 6 months ago but I certainly
haven't heard from him.

Although Aransas County crime is nothing like CC, its been rising and too
many offenders are not prosecuted.

*Posted by kingalonzoalvarezdepineda13 on September 1, 2007 at 8:09
a.m. (Suggest
removal )*

I just sent only the tip of the iceberg Mr fish.

Should you want to continue by all means let us carry on.

You will be embarrassed that you stuck up for this guy. I also have the
paperwork listing his places of deployment and there is nothing about Iraq
or the Gulf War.

*Posted by dannoynted1 on September 1, 2007 at 8:11 a.m.*

*(This comment was removed by the site staff.)*

*Posted by kingalonzoalvarezdepineda13 on September 1, 2007 at 8:24
a.m. (Suggest
removal )*

Got to go pay respects to a fallen warrior be back in the afternoon.


*Posted by dannoynted1 on September 1, 2007 at 8:25 a.m. (Suggest

But you owe your first born child .....he said black and white and it
is read all over!

*Posted by benjalamela on September 1, 2007 at 9:07 a.m. (Suggest

Let me get this right. Kleberg Co is in dire financial straits because of
the icompetence of the co. judge. The judge says it won't cost the county
anything for a new DA, right. The judge and the senator pushed for a new DA.
Hubert is a republican, the co. judge and the senator are D's (ok DINO's)
and they are backing Hubert. Orale, do they think we are blind - see ya in
Nov 08.

*Posted by quiet_guy_1999 on September 1, 2007 at 9:59 a.m. (Suggest

Yeah - reputable information from someone who admits Hubert prosecuted his
wife. You people are pathetic. Spend some time on bettering your own lives
instead of attempting to ruin the lives of others. Hubert is a great guy -
are ya all a little worried he may be the guy with the time to cease your
illegal activities? I recognize you all from a blog where you go on and on
and on spouting your untruths and slandering everyone who is associated with
the law. Kingalonzo, you are so full of crap when you say you have
documentation that can prove Hubert wasn't in Iraq. SO freakin full of crap.
Pretty sure the lawsuit kingalonzo is talking about is going to materialize
as a frivilous lawsuit from people who believe their civil rights have been
violated because someone enforcing the law actually made someone in their
family obey the law. give me a frickin break!!

*Posted by kspcm01 on September 1, 2007 at 11:30 a.m. (Suggest

Mr. Hubert is a good guy. He is quite competent and means well in trying to
prosecute individuals guilty of criminal behavior. I do not at all believe
that he is overzealous.

If he is guilty of anything, it is in caring for his community enough to
warrant the foulish complaints of those who were successfully prosecuted. He
strikes a good balance between crime and punishment and the judicial
process. Yes, the process itself is sometimes a punishment (even for the
innocent), but the motives are clean.

If this were an election, he would have my support.

*Posted by dannoynted1 on September 1, 2007 at 1:31 p.m. (Suggest

Not so quiet now verdad.........guy?

This Joke is going to get every thing he deserves and I won't have to do a

*Posted by kingalonzoalvarezdepineda13 on September 1, 2007 at 1:40
p.m. (Suggest
removal )*


You know, sometimes it takes a civil suit just to bring the truth to the
top, to be able to ask some questions and get some answers documented to
right a wrongful act of the Kingsville prosecution. Now, if one County
Attorney can get indicted why not the new DA as well. I will trade the civil
litigation for the criminal prosecution of the ones you think so squeaky
clean. We are the little people who remain obtuse regardless of one's
feeling of superiorority. We are not going away and we will expect your
apology when the truh surfaces. BTW, if there is any attorneys who would
like to go on this magic carpet ride with me, now is the time.

As for Hubert, do you know who his sister is?

Which one of his relatives were involved in the Cheney shooting Whittington
deal. Don t take my word for it go do some home work. I sat in the court
room and watched this man lie through his teeth and when the truth began to
come out he always interrupted and suppressed it.

Perry has a useful spot for John Hubert to be appointed but Hubert will fail
to get elected when the time comes.

And one more thing.......

They drew first blood!

*Posted by dannoynted1 on September 1, 2007 at 1:44 p.m. (Suggest

means well in trying to prosecute individuals guilty of criminal then he
better take a look in the mirror , tampered with evidence , fabricated
evidence, presented false documents that is Fraud and he confessed he was
prosecuting myself for "personal" reasons.

He is and will always be a malicious prevaricator and abuse his authority
and just wait till it is his turn.

Ask him why Carlos Valdez FIRED him.

*Posted by kingalonzoalvarezdepineda13 on September 1, 2007 at 1:44
p.m. (Suggest
removal )*

As for illegal activities, will you please support your comments with some

Either put up or shut up.

But you know the Federal Investigations occurring in this town right now
started with one little phone call and some very credible proof.

*Posted by kingalonzoalvarezdepineda13 on September 1, 2007 at 1:52
p.m. (Suggest
removal )*

I applaud your condescension.

Keep fueling my fire?


*Posted by kingalonzoalvarezdepineda13 on September 1, 2007 at 2:05
p.m. (Suggest
removal )*

Go look up a case named Gearhart.

See if you can get the video from the cop car camera when they are the ones
who screwed up?

The camera never works when the citizen request it.

John Hubert has no jurisdiction in Nueces County and that is where I live.

Quiet Guy you dont stand up for your wife?

My credibility resounds from CC Town all the way to the District.

Why so quicjk to take the side of a Kleberg Prosecutor whose blood relative
was part of the Whittington shooting cover up?

Did Bo come forward and reveal that Cheny was drunker than a skunk?

*Posted by kingalonzoalvarezdepineda13 on September 1, 2007 at 2:14
p.m. (Suggest
removal )*

One more point

I am here as myself my identity announced.

Most of you attack from behind anonymity and if it takes that protection for
you to become engaged then it is worth it.

Go back and look at how many times my words have been discounted only to
become truth and common knowledge after the discourse and fact checking.

*Posted by dannoynted1 on September 1, 2007 at 3:05 p.m. (Suggest

Hey Alfred Isassi still think you were the target of politics . Or set up or

Someone had an agenda and you were not going to stop this prevaricator from
getting his way.

Daynor Roberts.

Ever since Hubert was fired he has been trying to get his own "district"
Attorney JOB since he was fired he has been the main lobby behind this
"newly created" JOB.......just for him.
You had the nerve to get in his way and presto your under indictment , how
nice for the family eh?

Nepotism and cronism, wonder what his sister got on these mentirosos?

Go ahead and delete my words they are going elsewhere........I am not the
one that engineered "Sam Fugate chronicles".
This guy(Hubert) will lose come election time unless of couse him and mamone
pete (manicured nails pete) rig it like they did against Phil Esquivel mayor
elected by the people of Kingsville only to be replaced by the white bitter
men faction of Kingsville.
What is the Grand dragons name ........Virginia Frenzel and her BUNCH?

Sam Granato, .......another lawsuit that KV lost.

Pete De la Garza is the winner of the coconut of the week.

Yup had to get rid of the color that is not to say the last one is DeLa
Garza now that you helped out the bitter men........They do not need you
anymore Pete.

Time has a way of desperate people who use others because they can and you
my dear Pete will soon see things are not going to be like they
"used to be".

no more Kings Inn with the people that done got you to sell out your people.

*Posted by kingalonzoalvarezdepineda13 on September 1, 2007 at 3:38
p.m. (Suggest
removal )*

1 A Stay of Mandate t file Writ of Cert

2 File Writ of Certiorari

3 Initiate Civil Due Process and file Plaintiff first request for Discovery,
written interrogatories and motions to take video deposition.

4 Serve everyone subpoenas and request for production of applicable agency
policy of which the prosecution relied on to charge defendant and address
TPU 105.

The suit will welcome all who can legitimately make a claim based on all
remedies and protections under the U S Constitution.


*Posted by kingalonzoalvarezdepineda13 on September 1, 2007 at 3:43
p.m. (Suggest
removal )*

For the mean time we are in the process of acquiring the Hvalinka V Schubert
Modification of JOB opportunities styled Sam Granato V City of Kingsville,
Carlos Valdez and a few other et als. When we obtain it we will make it
available to the public.

*Posted by quiet_guy_1999 on September 1, 2007 at 4:17 p.m. (Suggest

LOL!!! Oh brother! My wife would never find herself in position to be
prosecuted in the first place! I know several of the Hubert's personally.
And I don't think anyone was fooled by the alleged "cover up" when Cheney
shot his buddy. Anyone with a brain knows there was alcohol involved. You
make a mockery of someone who upholds the law with your rants and
raves....all of you do. Get a job, a real job!

*Posted by kingalonzoalvarezdepineda13 on September 1, 2007 at 6:26
p.m. (Suggest
removal )*

Like you Quiet Guy? Yeah you are too good for all of us. You just placed
your wife in terrible peril by saying, "My wife would never find herself in
position to be prosecuted in the first place!". Very ignorant hubris on your

As far as that documentation it will be produced when the time is

I wonder has your wife ever video taped a copyrighted movie or show and
shown it at a party or public place?

Maybe she will accidentally run over someone while running late?

Maybe she will forget the quiet child in the back seat and remember a minute
too late.

Do a little homework Hvalinka v Schubert and the manipulation of one's JOB

Get a JOB you say as you know WATT you are talking about. My JOB gets better
by the day even though I work at night. Why dont you just spit it out and
introduce yourself?

You are a nobody and will never ascend in the communities of South Texas.

You know, John Hubert gives the Rivera Huberts a bad name.

As far as the Cheney prevarication it was an attempted cover up and was a
cover up for many hours while Bo Hubert Acquiesced and obstructed justice.
John Hubert obstructed Justice and withheld the exculpatory law and TPU to
capture an unjust conviction.

As for your wife, you made some very foolish statements for the sake of a
winning point, but how much Karma did you leverage?

I would never wish on your wife or any decent human being the last 7 years
of hell my wife and family have endured.

I ask that GOD bless you and your family as many blessings as the product of
all the sand grains on the beaches and all the stars in the universe raised
to the infinity powered squared. God, I ask that the hubris of this husband
be forgiven and that he humble himself in your presence. Let him receive the
guidance from you to act appropriately.

*Posted by rrempp on September 1, 2007 at 10 p.m. (Suggest

What the hell is all this freakin ranting and raiving about? You sound
ridiculous and malicious.

*Posted by tamuk94 on September 1, 2007 at 10:05 p.m. (Suggest

Hey King,

My only question is why did you put yourself in the position to have to
"endure this hell"?

Also, what do you mean by "Riviera Hubert's". John is a "RIviera Hubert".
You obviously don't know who his dad was. Just to let you know, it was Dr.
Pat Hubert, DVM.

*Posted by quiet_guy_1999 on September 1, 2007 at 10:13 p.m. (Suggest
removal )*

Oh brother!!!!!!!!!!!!! It's no wonder your wife is in trouble! Ahhh, but i
am a somebody. Somebody who thinks you're a flaming lunatic! No more time
spent here, folks. My foolish mind can't take no more!! hahahahahahahaha!!!
As far as karma goes, a wise old witchdoctor once told me, karma begins in
the car and ends with ma!! Oh, one more thing .... as far as my wife
infringing upon copyright violations, I doubt we have to worry - she's a
reader and a writer, not a television/movie watcher. And, she's never late
for anything so I doubt she'll run anyone over in her haste to arrive on
time. Nope, I'm not seeing it! But, just for the record, I REALLY REALLY
hope God blesses you, too!

And to John Hubert, I'm proud of you bud. Stand tall, convictions firm, and
go get 'em! Take it personally, John. It's your job to take the people who
disobey the law personal
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Taxpayers pay for the worthless loser who will not even come to the phone........waste of your taxe

loser had to cheat to win the election! cheater!