Capps v. Henderson County

• Court: District Court, E.D. Texas
• Decided: March 26, 2024
• Docket: 6:22-cv-00391
• Status: Unknown

Opinion

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF TEXAS No. 6:22-cv-00391 Robert Capps, MD, et al., Plaintiffs, V. Henderson County, Texas, et al., Defendants.

OPINION AND ORDER Plaintiffs Robert Capps and Aily Hoang sue under 42 U.S.C. § 1983, alleging that defendant James Bailey violated their Fourth Amendment rights during two visits to their property.’ Plaintiffs also seek to hold defendant Henderson County liable for those al- leged Fourth Amendment violations.” And plaintiffs seek a de- claratory judgment against Henderson County that “their sewage disposal system does not require a permit pursuant to Texas Health and Safety Code Section 366.502(a).”? The magistrate judge issued a report* recommending that the court grant both defendants’ motions for summary judgment.° In that report, the magistrate judge also ordered certain documents tendered by plaintiffs to be stricken, on defendants’ motion.°® That report and order are now reviewed on plaintiffs’ objec- tions’ and defendants’ response to the objections.* The court re- views the objected-to portions of the report de novo? and the un- objected-to portions of the report and the order striking

'Doc. 1 at 9-10 JJ 22-23. 2 Id. at 5-6 J 15. 3 Id.at 9 21. *Doc. 83. > Docs. 39, 59. ® Doc. 50; see 28 U.S.C. § 636(b)(1)(A) (magistrate-judge authority to rule on the motion to strike, not just recommend a disposition of the motion). 7 Doc. 89. Doc. 90. ° See Fed. R. Civ. P. 72; 28 U.S.C. § 636(b)(1).

documents for clear error.10 For the reasons below, the court does not disturb the magistrate judge’s order striking documents. The court then denies defendant Bailey’s motion for summary judg- ment in part but otherwise accepts the magistrate judge’s report and recommendation. 1. Objections to the order striking plaintiffs’ unsigned, un- dated declarations On review of a summary-judgment motion, a court construes all facts in the record in the light most favorable to the nonmovant. In applying that principle here, the court must disregard the un- sworn declarations of facts tendered by plaintiffs11 because they were stricken from the record by the magistrate judge, unless the court reverses that order for clear error. The court thus first turns to that order. The magistrate judge granted defendants’ motion to strike three self-styled affidavits attached to plaintiffs’ response to de- fendant Bailey’s motion for summary judgment because they were not sworn to and were not in conformity with 28 U.S.C. § 1746’s allowance for unsworn declarations because they were undated and unsigned.12 Plaintiffs, who are represented by counsel, did not respond to the motion to strike by seeking leave to file replace- ment declarations in conformity with § 1746.13 “A magistrate judge is permitted broad discretion in resolving nondispositive pretrial motions,”14 including motions to strike documents that do not meet the legal requirements for proof suf- ficient to overcome summary judgment.15 An order striking such

10 See Douglass v. United Servs. Auto. Ass’n, 79 F.3d 1415, 1420 (5th Cir. 1996) (en banc) (unobjected-to portions of report); Castillo v. Frank, 70 F.3d 382, 385 (5th Cir. 1995) (clear error review for “non-dispositive, pretrial mo- tion”). 11 Docs. 48-2, 48-3, 48-4. 12 Doc. 83 at 6. 13 Id. 14 A.M. Castle & Co. v. Byrne, 123 F. Supp. 3d 895, 898 (S.D. Tex. 2015). 15 See Baker v. Bowles, 2007 WL 9747849, at *4 (N.D. Tex. July 10, 2007) (clear-error review attaches to magistrate judge’s order striking documents materials “may only be set aside if it ‘is clearly erroneous or is contrary to law.’”16 Here, plaintiffs argue that the unsworn, undated attestations of fact were competent summary-judgment evidence. But plain- tiffs argue only that the attestations qualify as “declarations” cog- nizable under Rule 56(c)(1)(A), as opposed to other cognizable ev- idence such as stipulations or depositions.17 Plaintiffs’ arguments do not show any clear error in the magistrate judge’s conclusion that the attestations are not sufficient declarations. Plaintiffs argue that their declarations were “signed and dated by filing with the Court.”18 But the declarations were e-filed by plaintiffs’ attorney, who does not himself claim personal knowledge of the matters therein (and who would be incompetent to testify in his own clients’ case in any event). And the e-filing constitutes only a signature by plaintiffs’ counsel, as opposed to plaintiffs’ themselves. A recitation of facts that “is signed only by counsel, [and] is not in affidavit form, . . . is not properly to be weighed, as far as its factual statements are concerned, in deter- mining whether summary judgment should be granted.”19 Additionally, the declarations are not only unsigned but un- dated. To be sure, courts have considered undated declarations if the declarant submits extrinsic evidence demonstrating the pe- riod during which the document was signed.20 But, as just noted, the declarations here were not signed by the purported declarants at all. Plaintiffs cite no case allowing an undated and unsigned dec- laration to be considered as evidence.

from the summary-judgment record); E.D. Tex. L.R. CV-56(b), (d) (requiring party opposing summary judgment to attach competent proof, such as affida- vits or declarations). 16 Moore v. Ford Motor Co., 755 F.3d 802, 806 (5th Cir. 2014) (quoting Fed. R. Civ. P. 72(a)). 17 Doc. 89 at 1. 18 Id. at 2. 19 Wittlin v. Giacalone, 154 F.2d 20, 22 (D.C. Cir. 1946). 20 See, e.g., Olibas v. John Barclay Native Oilfield Servs., LLC, 2014 WL 12602869, at *2 (N.D. Tex. Mar. 12, 2014) (citing Peters v. Lincoln Elec. Co., 285 F.3d 456, 475–76 (6th Cir. 2002)). Plaintiffs next assert that courts do not strike declarations without “some material discrepancy or suspicion of foul play.”21 Although plaintiffs cite the district court’s decision in Olibas for that assertion, the court there did not consider suspicion of foul play or the presence of a discrepancy in its decision not to strike an undated declaration.22 Rather, the court in Olibas decided not to strike the declaration at issue because “courts typically do not exclude an undated declaration unless it fails to comply with some other statutory requirement as well” and because the proponent of the declaration provided extrinsic evidence demonstrating the date the declaration was signed.23 Again, in contrast to those facts, the declarations here failed to meet two statutory requirements in that they were undated and unsigned by the declarants—and thus offered without extrinsic evidence of the date of any signature.24 Courts have refused to ad- mit such declarations to defeat summary judgment.25 Accord- ingly, the order striking the unsigned, undated declarations from the summary-judgment record was not a clear abuse of the magis- trate judge’s “broad discretion.”26 Plaintiffs’ objections to that or- der are overruled. 2. Objections to the recommendation of summary judgment in favor of both defendants a. The following recitation views the facts in the summary- judgment record in the light most favorable to plaintiffs. Plaintiffs Capps and Hoang reside on over 39 acres of land in Chandler, Texas, a municipality within Henderson County.27 Dur- ing the events giving rise to this lawsuit, defendant James Bailey

21 Doc. 89 at 3. 22 Olibas, 2014 WL 12602869, at *2. 23 Id. 24 Doc. 83 at 5–6. 25 Rogers v. Paris Reg’l Med. Ctr., 2021 WL 5622119, at *6 (E.D. Tex. Oct. 22, 2021); Orr v. Orbis Corp. (Wisconsin), 2010 WL 3368124, at *3 (N.D. Ga. July 30, 2010) (collecting cases). 26 Moore, 755 F.3d at 806. 27 Doc. 1 at 3 ¶ 7. was Henderson County’s designated representative for inspecting onsite sewage facilities (OSSFs), such as septic tanks.”° On October 19, 2020, Bailey received an anonymous com- plaint that an OSSF was being installed on plaintiffs’ property closer to the property line than allowed.” Later that day, Bailey drove by plaintiffs’ property and observed a large pile of dirt ap- proximately 100 yards from the road.*° From his “training, educa- tion, and over forty years[] of experience,” it was “clear” to him that this pile of dirt was “some sort of a makeshift septic sys- tem.” *' He could also tell from the roadway that the septic system was closer than 100 yards to a fence, which he presumed marked plaintiffs’ property line.*? A picture of plaintiffs’ property was taken by Mr. Bailey from his vantage point on the public road- way: FXowess? a = [Fea Sa ath eee

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78 Doc. 39-2 (Bailey affidavit) at 2. 9 Td. at 3. 3° Td. 31 Td. 32 Td. 3 Doc. 59-1 at 16. -5-

Without a warrant, Mr. Bailey walked up to the house and knocked on the door, but no one answered.** At some point, he took four more photographs:* tomes PY. Clack fawwee WY. Bard ee fO-19- 20 fO-fF- 2a ey a = ss Dati ces ee | j ‘ i. a □ ial a oy" ¥ ia i = rer one eae = — Paes Dk a poh tie Manee 5° “3 ey a: — | ae tei ale a ge omnes 6 FRM tage ee ae AAs apc cs Boe. ee nie Z Precip th nee Lees | ens pen ae ageae® aya, ee ey Bhai amen yf ate 19, RS, 5 GTS 4 Re ees eons a Fo ae = eae I cn ae oC aa Mette us ca: SE i ES ae iB tc eee Ae el pe RE Re □□□ coi, Oe Ro: □□□ Saas re Paes te Ra MA Ete ie ie ge a ame ON. he ree Bs cope

ea Foseuesis 7 fO-/9-29 tenen a (0-19-20 Wee 1.» by} | ea coe 2 p> _. □□ i | i i ss BA i} Ae fe ae lei See | | y Tt i a crea imal |i) 1 FN ile fel: gh ae ee rr Wot def a) 2 Ve co i NN lal Ht lpi Me > =A PA = te Pe Patten se oo NN eg oa el 5 Pee ag ee eT sles a Be Ng arg en man aera ar □□ ge ‘dias PVN, Aaa Pe age Fi AN i AR | og ae Br, 9 ah: fo Be ee oe a a Coe I | \ ia BR Sess eo jo St LAB as, cyt TR a eres See) fc a ae RO eae eis aad oa Re ei □□ ad “After taking the photographs, [he] then affixed a notice on the door of the house informing the [owners] that their septic config- uration violated various codes, rules, and regulations.” *

4 Doc. 39-2 at 3. 5 Doc. 59-1 at 7-10. % Doc. 39-2 at 5. -6-

After returning home, Capps contacted Bailey about the no- tice.37 A few months later, Bailey returned to plaintiffs’ property (again without a warrant) and noticed a “new manufactured gate at the entrance.”38 The gate was closed but unlocked. Bailey opened the unlocked gate, walked up the driveway, and knocked on the door.39 Hoang, apparently alarmed, asked Bailey how he had gained access to the property.40 Capps then came outside and motioned Bailey to walk away from porch.41 Plaintiffs allege that Bailey’s conduct during both visits violated the Fourth Amend- ment. b. The magistrate judge concluded that Bailey is entitled to qualified immunity.42 Plaintiffs object to that conclusion. To defeat qualified immunity, plaintiffs must show that it is clearly established in the Fifth Circuit that Bailey’s actions vio- lated plaintiffs’ Fourth Amendment rights.43 “To provide such clarity, the precedent must be sufficiently specific: ‘[i]t is not enough that a rule be suggested by then-existing precedent.’”44 A “case directly on point” is not required, but the case law must place a rule’s application to a set of facts “beyond debate.”45 As noted, in the context of evaluating qualified immunity, the court must “view the facts and draw reasonable inferences in the light most favorable to the party opposing [summary judgment].”46 The Fourth Amendment provides that the “right of the peo- ple to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be

37 Id. 38 Id. 39 Id. at 5–6. It is unclear whether Mr. Bailey opened the gate fully in order to drive up to the residence (rather than walk) or if he closed the gate thereaf- ter. 40 Id. at 6. 41 Id. 42 Doc. 89 at 2. 43 See Boyd v. McNamara, 74 F.4th 662, 667–68 (5th Cir. 2023). 44 Id. (quoting City of Tahlequah v. Bond, 595 U.S. 9, 12 (2021)). 45 Kisela v. Hughes, 584 U.S. 100, 104 (2018). 46 Scott v. Harris, 550 U.S. 372, 378 (2007) (internal quotation marks omit- ted). violated.”47 At the “very core” of this right is “the right of a man to retreat into his own home and there be free from unreasonable government intrusion.”48 “And the ‘curtilage’ of the home—that is, ‘the area immediately surrounding and associated with the home’—is ‘part of the home itself for Fourth Amendment pur- poses.’”49 1. The first visit.—The Supreme Court in Florida v. Jardines50 clarified the lawfulness of warrantless “knock-and-talks.” Alt- hough doing so involves walking up to and on the front porch of a home—the “classic exemplar” of curtilage—officials possess the same implied license as any member of the public to “approach the home by the front path, knock promptly, wait briefly to be re- ceived, and then (absent an invitation to linger longer) leave.”51 But that implied invitation has limits. For example, in Jardines, the officer violated the Fourth Amendment by walking a drug-detection dog back-and-forth along the normal pathway to a front door over the span of a minute or two.52 The record here, viewed most favorably to plaintiffs, estab- lishes that on his first visit Bailey walked up the driveway to plain- tiffs’ door, knocked, and awaited an answer. That alone was within the scope of the implied license recognized in Jardines. But the record would allow a jury to find that, rather than leave after getting no answer, Bailey proceeded to take pictures after walking over to the other side of plaintiffs’ dwelling.53 If he indeed did so, Bailey intruded on the curtilage of plaintiffs’ home outside the scope of an implied license and thus violated the Fourth

47 U.S. Const. Amend. IV. 48 Silverman v. United States, 365 U.S. 505, 511 (1961). 49 Sauceda v. City of San Benito, 78 F.4th 174, 183 (5th Cir. 2023) (quoting Florida v. Jardines, 569 U.S. 1, 6 (2013)). 50 569 U.S. 1 (2013). 51 Id. at 7–8; see also id. at 8 (noting that “the Nation’s Girl Scouts and trick-or-treaters” manage this standard “without incident”). 52 Id. at 18 (Alito, J., dissenting). 53 The pictures are taken from different angles of the house, and Mr. Bai- ley’s affidavit seems to recount that he took the photos while on plaintiffs’ property. Amendment. In Jardines, the officer stuck to the traditional path- way to the front door of the house. In contrast, Bailey’s photo- graphs support an inference that he left the traditional pathway up to the front porch, walked all the way to the backside of the house, and took photographs within 30 feet of the dwelling.54 Even the dissent in Jardines recognized that, in acting under an implied li- cense to approach front door, “[a] visitor must stick to the path that is typically used to approach a front door” and could not “traipse through the garden, meander into the backyard, or take other circuitous detours that veer from the pathway that a visitor would customarily use.”55 Jardines gave public officials clear guidance as to behavior that is allowed when entering property to conduct a knock-and-talk. Meandering into the backyard was squarely foreclosed. Because there is a fact issue as to whether Bailey exceeded those clear guidelines, qualified immunity is inappropriate at this stage as to his liability regarding his first visit to plaintiffs’ property. 2. The second visit.—The second visit differs from the first in two ways. First, there was a closed but unlocked gate that Bailey had to open to approach plaintiffs’ front door.56 Second, no record evidence supports an inference that Bailey’s conduct on this visit extended beyond approaching the front door, knocking, talking, and leaving. Jardines held that public officials have the same implied li- cense as the rest of the general public to approach a home to knock and seek an audience with its inhabitants.57 But that implied

54 See Doc. 39-2 at 3 (“The single-wide trailer house was approximately thirty feet way from a fence which appeared to be the property line. The pile of dirt and makeshift septic system was between the house and the fence.”). 55 Jardines, 569 U.S. at 19 (Alito, J., dissenting) (emphasis added); see also Bovat v. Vermont, 141 S. Ct. 22, 24 (2020) (Gorsuch, J., respecting denial of cert.) (noting that there are no “‘semiprivate’ areas within the curtilage where governmental agents may roam from edge to edge”). 56 Capps stated in his unsworn declaration that there was also a closed gate that Bailey passed through at the first visit, but that affidavit was struck from the record above. 57 Jardines, 569 U.S. at 8. license may be revoked as to the public generally.58 Plaintiffs argue that societal expectations dictate that “when confronted with a closed gate,” absent an explicit invitation, “one does not enter a property for any reason short of clear emergency.”59 Plaintiffs ar- gue that by opening or otherwise passing through the closed gate, Bailey may have violated Texas criminal law.60 The court agrees that the most prudent of visitors, such as the stereotypical Girl Scouts selling cookies, would not open a closed gate to approach a house, especially a house set back on a rural property in Amer- ica.61 Those conclusions are some indicia that a reasonable member of the public would have known that there was no implied license to knock-and-talk at plaintiffs’ door in the face of the specific gate and property here. But, as explained by the magistrate judge, no Supreme Court or Fifth Circuit case has expounded on the con- duct or physical alterations to a home that would revoke the im- plied license.62 The closest guidance found by this court was not any such appellate decision, but simply the suggestion of Florida’s counsel at oral argument in Jardines that “[h]omeowners can re- strict access to people who come up to their front door by putting [up] gates.”63

58 See United States v. Carloss, 818 F.3d 988, 999 (10th Cir. 2016) (Tym- kovich, C.J., concurring) (noting that consent to approach a front door would be revoked if a reasonable visitor “must know or ha[ve] reason to know” that the homeowner has revoked the license). 59 Doc. 89 at 4. 60 See Tex. Pen. Code § 30.05(b)(2) (“fencing or other enclosure obviously designed to exclude intruders or contain livestock” provides sufficient notice to constitute trespass). 61 See Jardines, 569 U.S. at 8 (using analogy of how Girl Scouts would han- dle the situation); Girl Scouts of Utah, Wow the World!: Girl Scout Cookie Program Family Guide 2020, at 15, https://www.gsutah.org/con- tent/dam/girlscouts-gsutah/cookies-and-fall-product/2020-cookie-docu- ments/2020%20Family%20Guide.pdf (“Girls should not go into a yard if there is a dog or a closed gate/fence.”). 62 Doc. 83 at 12–13. 63 Transcript of Oral Argument at 5–6, Florida v. Jardines, 569 U.S. 1, 6 (2013) (No. 11-564). But the court has found no precedent deciding whether revo- cation of the implied license turns on factors like the nature of an unlocked gate (part of a low, white-picket fence vs. part of a more rustic metal fence) or the nature of the environment (rural, sub- urban, urban). The circumstances of an unlocked gate that could signal revocation of the implied license are not “so well defined” that it would be “‘clear to a reasonable officer that [knocking on the door] was unlawful in the situation [Bailey] confronted.’”64 Because neither the Supreme Court nor the Fifth Circuit have held that the implied license is revoked in circumstances provid- ing clear guidance on the facts here, Bailey is entitled to summary judgment from damages liability as to his second visit, whether or not his conduct actually violated the Fourth Amendment. Plain- tiffs are, of course, free to ask higher courts to overturn the doc- trine of qualified immunity or provide a Fourth Amendment rul- ing on the facts of this case.65 c. The magistrate judge concluded that defendant Henderson County is entitled to summary judgment because plaintiffs’ com- plaint fails to state a valid claim against it.66 In doing so, the mag- istrate judge construed defendant’s motion for summary judg- ment as a motion to dismiss. Because plaintiffs did not object to the magistrate judge’s conclusion as to this defendant, the court reviews that recommended disposition for clear error.67 The complaint asserts two theories of municipal liability: rat- ification and failure-to-train.68 As to ratification, the court is left with nothing more than the complaint’s naked allegation of “some evidence that suggests Henderson County policymakers ratified Mr. Bailey’s conduct.”69 As to the failure-to-train claim, the

64 District of Columbia v. Wesby, 583 U.S. 48, 63 (2018) (quoting Saucier v. Katz, 533 U.S. 194, 202 (2001)). 65 See Pearson v. Callahan, 555 U.S. 223, 236 (2009) (holding that courts have discretion to decide whether an official violated the Constitution before deciding whether the right was clearly established). 66 Doc. 83 at 15–19. 67 Douglass, 79 F.3d at 1420. 68 Doc. 83 at 16; Doc. 1 at 6. 69 Doc. 1 at 6. complaint’s bare allegation of inadequate training or supervi- sion,70 is expounded upon, to some extent, in plaintiffs’ argument here.71 But that limited argument does not show any clear error in the magistrate judge’s conclusion that the complaint’s allegations are conclusory and warrant dismissal. The magistrate judge’s report and recommendation is thus adopted in that regard, and plaintiffs’ claims against Henderson County are dismissed. Plaintiffs are granted one opportunity to amend their pleading, if they wish, and have until April 10, 2024, to file an amended complaint. d. Plaintiffs object to the magistrate judge’s finding that the court does not have subject-matter jurisdiction over their declar- atory-judgment claim.72 Plaintiffs’ complaint requests “a declara- tory finding that their sewage disposal system does not require a permit pursuant to Texas Health and Safety Code Section 366.052(a).”73 The magistrate judge recommended granting defendants’ mo- tions for summary judgment on the declaratory-judgment action because plaintiffs do not allege any ongoing controversy regarding their septic system’s compliance with the Texas Health and Safety Code.74 “The Declaratory Judgment Act is designed to afford par- ties, threatened with liability, but otherwise without a satisfactory remedy, an early adjudication of an actual controversy.”75 As noted in the report, dismissal of a declaratory judgment action is

70 Id. 71 See Doc. 70 at 18 (pointing out that defendant Bailey swears he is una- ware of training he received that any action he took was unlawful); id. at 28 (alleging that Henderson County has “never disciplined James Bailey either by counseling him, reprimanding him, or causing him to undergo serious train- ing in the manner in which to conduct lawful, compliant entries onto the pri- vate property of others or how and when to request a search warrant to carry out his important lawful duties”). 72 Doc. 89 at 8. 73 Doc. 1 at 9. 74 Doc. 83 at 21. 75 Collin Cnty. v. Homeowners Ass’n for Values Essential to Neighborhoods, 915 F.2d 167, 170 (5th Cir. 1990). proper when no “actual controversy” exists between the parties such that the declaratory action is not justiciable.76 Plaintiffs admit in their objections that “the parties do not dis- pute that plaintiffs’ on-site sewage facility once installed was fully compliant with Texas regulatory law in all respects.”77 Because there is no continuing controversy between the parties now that the septic system is installed, the court does not have subject-mat- ter jurisdiction over plaintiffs’ declaratory-judgment action. Plaintiffs’ claim for that relief is dismissed without prejudice for lack of jurisdiction. 3. Outstanding discovery issues Lastly, plaintiffs object to the fact that the magistrate judge did not rule on defendants’ pending motion for protection before is- suing the report.78 The deadline for discovery regarding qualified immunity in this case was May 19, 2023.79 Bailey filed his motion for summary judgment on qualified immunity on June 13, 2023.80 The interrogatories and requests for production at issue in de- fendants’ motion for protection were propounded on August 9, 2023.81 Crucially, the discovery order entered in this case noted that “discovery shall be limited to the issue of qualified immunity until the issue is decided by the Court.”82 It was appropriate to delay a ruling on interrogatories and requests for production that were propounded months past the May 19 deadline because the issue of qualified immunity had not been decided. 4. Conclusion For the reasons stated above, (1) the court declines to disturb the magistrate judge’s order on defendants’ motion to strike; (2)

76 Orix Credit All., Inc. v. Wolfe, 212 F.3d 891, 895 (5th Cir. 2000) (noting that when considering a declaratory judgment action, a district court’s first step should be to determine whether an “actual controversy” exists between the parties to the action). 77 Doc. 89 at 2. 78 Id. at 7. 79 Doc. 27 at 5. 80 See Doc. 39. 81 Doc. 55 at 1. 82 Doc. 24 at 4. defendant Bailey’s motion for summary judgment based on qual- ified immunity*? is denied as to the alleged first visit and granted as to the alleged second visit; (3) defendant Henderson County’s motion for summary judgment** is construed as a motion to dis- miss for failure to state a claim and is granted; and (4) plaintiffs’ claim for a declaratory judgment is dismissed without prejudice for lack of subject-matter jurisdiction. Plaintiffs have until April 10, 2024, to file an amended complaint, if desired. So ordered by the court on March 26, 2024.

j! CAMPBELL BARKER United States District Judge

83 Doc. 39. 4 Doc. 59. -14-