UNITED STATES COURT OF APPEALS For the Fifth Circuit
No. 92-5208
and
No. 93-4090
BILLY J. HALE, Plaintiff-Appellee,
VERSUS
CARL TOWNLEY, ET AL.,
Defendants-Appellants. *************************************************** BILLY J. HALE,
Plaintiff-Appelalnt,
Defendants-Appellees.
Appeal from the United States District Court for the Western District of Louisiana (February 9, 1995)
Before REAVLEY and DAVIS, Circuit Judges, and ROSENTHAL, District Judge.* Rosenthal, District Judge:
Opinion on Reconsideration
This court withdraws the opinion issued in this case
dated May 3, 1994, appearing at 19 F.3d 1068, and substitutes the
following:
* District Judge of the Southern District of Texas, sitting by designation. Billy J. Hale, plaintiff below, sued fifteen law
enforcement officers under 42 U.S.C. § 1983, alleging conspiracy to
retaliate for Hale's exercise of his right of access to the courts;
unconstitutional search and seizure; and the use of excessive force
during search and arrest. Each defendant filed a motion for
summary judgment based on qualified immunity. The district court
granted the motions for summary judgment for ten of the defendants
and dismissed Hale's claims against them. Hale appealed from the
summary dismissal of three of those ten defendants. The district
court denied the motions for summary judgment as to five of the
defendants, who have filed interlocutory appeals based on the
qualified immunity defense.
For the reasons set out below, this court affirms the
district court in part and reverses in part.
I. Background
In July 1985, Hale was arrested for aggravated
kidnapping. The grand jury did not return an indictment. Hale
then filed a 42 U.S.C. § 1983 lawsuit in federal court against the
head of operations of the Sheriff's Department in Caddo Parish,
Louisiana and against an FBI agent, alleging that the arrest had
been without probable cause. In April 1988, following a trial, the
district court entered judgment in favor of Hale against both
officials. That judgment was affirmed on appeal. Hale v. Fish,
899 F.2d 390 (5th Cir. 1990).
Hale alleges that beginning in the summer of 1988,
shortly after his successful trial, he was the target of a campaign
by law enforcement officers from different agencies to harass him
-2- and to implicate him in criminal activity. The allegations as to
the events and players are set out in chronological order below.
Hale alleges that the Shreveport City Police Department
began investigating the Sandpiper nightclub, where Hale worked as
manager of the club's exotic dancers, starting in the summer of
1988. By September 1991, Shreveport police officers had issued
thirty citations to Sandpiper employees for obscenity and for
violations of Shreveport's drinking ordinance. With one exception,
these citations were later dismissed. No other similar
establishment was cited for such violations during this period.
Defendants Russell Stroud ("Stroud"), E. Keith Fox ("Fox"), Larry
Townley ("Larry Townley") and Tom V. Humphrey ("Humphrey") were
officers with the Shreveport City Police Department.
Hale also alleges that in November 1989, the Caddo-
Bossier Narcotics Task Force ("NTF") began a narcotics
investigation into the Sandpiper. Defendants Carl Townley ("Carl
Townley"), a deputy with the Caddo Parish Sheriff's Department, and
P.M. Plummer ("Plummer"), a deputy with the Bossier Parish
Sheriff's Department, were assigned to the NTF.
Hale alleges that the Caddo Parish Sheriff's Department
also began investigating and harassing him during this time period.
In early 1990, defendant R.M. Fant ("Fant"), a deputy with the
Caddo Parish Sheriff's Department assigned to the intelligence
division, allegedly requested a former Sandpiper dancer to find an
underage female willing to have sex with Hale so that Hale could be
arrested.
On April 10, 1990, NTF agents and Shreveport police
officers raided the Sandpiper. NTF agents Carl Townley and Plummer
-3- participated in this raid. Shreveport police officers issued
citations for violations of the municipal drinking ordinance, and
the NTF arrested four individuals on narcotics charges. Later the
same month, Hale's car was stopped by Officer Humphrey of the
Shreveport City Police Department, searched, and impounded.
In January 1991, Hale applied for and received an
official permit for a private Super Bowl party at the Sandpiper.
On January 27, 1991, during the party, Shreveport police officers
raided the Sandpiper and cited Hale for allowing gambling on the
premises. After the citation was issued, Shreveport police
officers Stroud and Fox, accompanied by sheriff's deputy Fant,
summoned Hale outside the Sandpiper. Hale alleges that after an
exchange of words, Fox beat Hale while searching him for weapons.
Hale alleges that Stroud and Fant stood by and laughed, making no
effort to stop the illegal force.
Hale alleges that the following day, NTF representative
Carl Townley attempted to use an individual to set Hale up to
purchase some marijuana, but was unsuccessful.
On March 15, 1991, the Sandpiper was raided by
approximately fifteen Shreveport police officers, including Stroud,
for license violations. Hale arrived at the club with a video
camera and began filming the raid. Hale alleges that after he
entered the Sandpiper, several officers, including Stroud, accosted
Hale; arrested him; handcuffed him; beat his head against a table
inside the bar; forcibly jerked the handcuffs upward behind his
back, injuring his hand, wrists, and thumb; and took him outside,
where the officers beat his head against the hood of a truck.
-4- Hale alleges that during many of these incidents, various
defendants made statements that Hale was the target of these
activities because of his prior lawsuit.
On March 27, 1991, Hale filed this section 1983 civil
rights action. Hale's complaint alleges that the Sandpiper
investigation was a conspiracy to retaliate against Hale for his
successful prior lawsuit; that some of the defendants
unconstitutionally searched and seized him; and that some of the
defendants used excessive force against Hale on two occasions.
Each of the defendants filed a motion for summary
judgment. The district court dismissed Hale's claims against the
following ten defendants: Steve Prator, Tom Humphrey, Kenneth
Weaver, Ted Cox, H.A. Lawson, R.W. Vanni, Robert Schaver, Larry
Townley, R.E. Scaife, and C.A. Lewis. The district court denied
Carl Townley and Plummer's motions for summary judgment dismissing
the retaliation and conspiracy claims; denied Fox's and Stroud's
motions for judgment dismissing the excessive force and conspiracy
claims; and denied Fant's motion for summary dismissal of all the
claims against him. These five defendants appeal the district
court's denial of their motions for summary judgment based on
qualified immunity.
Hale filed a motion to alter or amend judgment, seeking
to reinstate his claims against defendants Larry Townley, Scaife,
and Lewis. The district court denied that motion. The district
court then entered a final judgment, pursuant to Rule 54(b),
regarding the ten officers dismissed with prejudice. Hale has
appealed the dismissal of the excessive force claims against Larry
-5- Townley, Scaife, and Lewis, and the dismissal of the conspiracy
claim against Lewis.
Because this case is on appeal from a summary judgment
motion, we review the record de novo, examining the evidence in the
light most favorable to the nonmovant. Pfannstiel v. City of
Marion, 918 F.2d 1178, 1183 (5th Cir. 1990). Appellants will
prevail if they have demonstrated that there were no genuine issues
of material fact and that they are entitled to summary judgment as
a matter of law. Anderson v. Liberty Lobby, Inc., 106 S. Ct. 2505,
2510 (1986); Fed. R. Civ. P. 56(c).
II. Denial of the Officers' Motions for Summary Judgment
The qualified immunity analysis is a familiar one. The
first step is to determine whether the plaintiff has alleged the
violation of a constitutional right. Siegert v. Gilley, 111 S. Ct.
1789, 1793 (1991); White v. Taylor, 959 F.2d 539 (5th Cir. 1992).
If plaintiff has alleged a constitutional violation, the next step
is to decide if the right was clearly established at the time the
challenged conduct occurred and whether the defendant's conduct was
objectively reasonable. Brewer v. Wilkinson, 3 F.3d 816, 820 (5th
Cir. 1993); Spann v. Rainey, 987 F.2d 1110, 1114 (5th Cir. 1993).
The denial of summary judgment on the basis of qualified
immunity is within the small class of cases subject to
interlocutory appeal. Mitchell v. Forsyth, 105 S. Ct. 2806, 2816
(1985). An appellate court has jurisdiction to review an
interlocutory denial of qualified immunity only to the extent that
it "turns on an issue of law." Id. Factual allegations are
examined to determine whether they would be sufficient, if proven,
to establish a violation of clearly established law. Lampkin v.
-6- City of Nacogdoches, 7 F.3d 430, 431 (5th Cir. 1993). If disputed
factual issues material to qualified immunity are present, the
district court's denial of summary judgment sought on the basis of
qualified immunity is not appealable. Feagley, 868 F.2d 1437, 1439
(5th Cir. 1989); Geter v. Fortenberry, 882 F.2d 167, 169 (5th Cir.
1989).
A. Excessive Force
1. Significant Injury: Fox, Stroud, and Fant
Shreveport police officers Fox and Stroud and sheriff's
deputy Fant claim that the district court erred in denying their
summary judgment motions because Hale did not satisfy the
"significant injury" requirement for his excessive force claims.
Hale alleged that during the January 27, 1991 raid on the
Sandpiper, Stroud summoned Hale outside "to talk." Stroud was
accompanied by Fox and Fant. Hale leaned on the bumper of Fox's
car. Fox, who was sitting in the car, told Hale to get off the car.
Hale backed away from the car and yelled an obscenity at Fox. Fox
got out of the car and asked Stroud whether Hale had been searched.
Fox then slammed Hale against the car, in front of Stroud and Fant,
kicked Hale, rammed his fist into Hale's testicles, and repeatedly
tried to smash Hale's head into the car. Hale alleged that he
suffered bruises, swollen testicles, and had difficulty in walking
and in moving his neck.
Hale's allegations as to the March 15, 1991 incident are
that a number of officers, including Stroud, rushed Hale,
handcuffed him, twisted his right hand and arm, threw him against
a table, beat his head against a table, took him outside, and beat
his head against a truck. Hale alleges that his wrists bled,
-7- blistered, and were swollen for two weeks, and that his right thumb
and wrist were permanently damaged. Hale alleges that Stroud both
participated in the use of excessive force and stood by without
interfering while other officers beat Hale.
The constitutional standard applied by the district court
required proof that the officials' actions caused a "significant
injury." Johnson v. Morel, 876 F.2d 477 (5th Cir. 1989) (en banc)
(per curiam). This court has stated that the failure to allege a
"lasting harm" is not fatal to an excessive force claim. Luciano
v. Galindo, 944 F.2d 261, 264 (5th Cir. 1991). Bleeding cuts and
swelling have been held legally "significant injuries" when they
were intentionally inflicted in an unprovoked and vindictive
attack. Oliver v. Collins, 914 F.2d 56, 59 (5th Cir. 1990).
Hale's factual allegations, if proven, would be sufficient to state
a claim for a legally significant injury. Johnson, 876 F.2d at
480.
The next issue for the qualified immunity analysis is
whether an objectively reasonable law enforcement officer would
have known that the degree of force used was excessive in relation
to the need for action. In examining the objective reasonableness
of the officers' conduct, this court is to apply the standards in
effect at the time the conduct took place. Rankin, 5 F.3d at 108;
Luciano, 944 F.2d at 264-65. Under those standards, Hale must show
a significant injury which resulted directly and only from the use
of force that was clearly excessive to the need, and which was
objectively unreasonable. Johnson, 876 F.2d at 480.
The summary judgment record shows disputed issues of fact
material to whether the officers' conduct was objectively
-8- reasonable in light of the surrounding circumstances. Hale alleged
that he did not resist or threaten the officers on January 27,
1991, and that Fox beat Hale without justification. Hale also
presented pleadings and summary judgment evidence that he did not
threaten or resist the officers on March 15, 1991, and that he was
beaten after he arrived at the raid with a video camera.
The officers presented a much different version of both
occurrences. The officers disputed the lack of provocation;
asserted that the officers reasonably perceived that Hale
threatened them; and disputed the degree of force actually used.
The denial of summary judgment based on these disputed material
fact issues is not appealable.
2. Bystander Liability
Caddo Parish deputy sheriff Fant argues that the district
court erred in refusing to grant Fant's motion for summary judgment
because Fant cannot be liable as a bystander for violations of the
Fourth Amendment.
The district court correctly held that an officer who is
present at the scene and does not take reasonable measures to
protect a suspect from another officer's use of excessive force may
be liable under section 1983. Harris v. Chanclor, 537 F.2d 203,
205-06 (5th Cir. 1976); Smith v. Dooley, 591 F. Supp. 1157, 1168
(W.D. La. 1984), aff'd, 778 F.2d 788 (5th Cir. 1985); see also
Gaudreault v. Municipality of Salem, Mass., 923 F.2d 203, 205 n.3
(1st Cir. 1990), cert. denied, 111 S. Ct. 2266 (1991). The fact
that Fox and Fant were from different law enforcement agencies does
not as a matter of law relieve Fant from liability for a failure to
intervene. Chanclor, 537 F.2d at 205-06.
-9- Viewing the allegations and summary judgment evidence
most favorably to Hale, the summary judgment evidence raises a fact
issue as to whether Fant had a reasonable opportunity to realize
the excessive nature of the force and to intervene to stop it.
Hale alleged that during the January 27, 1991 raid, Fant stood by
and laughed as Fox slammed Hale against the car; rammed his fist
into Hale's testicles; and repeatedly tried to slam Hale's head
into the car. Hale also alleged that Stroud and Fant yelled
encouragement at Fox. This evidence is sufficient to create a
genuine issue of material fact regarding Fant's acquiescence in the
alleged use of excessive force. See, e.g., McQurter v. City of
Atlanta, Ga., 572 F. Supp. 1401, 1415-16 (N.D. Ga. 1983), appeal
dismissed, 724 F.2d 881 (11th Cir. 1984).
B. The First Amendment Claims
The district court held that, taking Hale's allegations
as true, Hale stated a claim against Carl Townley, Plummer, and
Fant for violating his constitutional right of access to the
courts, free of retaliation. The law enforcement officers argue
that under the standards applicable during the time of the
challenged conduct, there was not a clearly established right of
access to the courts, free of retaliation.
An official's conduct is protected by qualified immunity
if, in light of legal rules that were clearly established at the
time of the action, it was objectively reasonable. A
constitutional right is clearly established if "in light of pre-
existing law the unlawfulness [of the alleged conduct is]
apparent." Anderson v. Creighton, 483 U.S. 635, 640 (1987). This
is true even if the "very action in question" had not then been
-10- held to be a constitutional violation. Id. at 640; see also Spann
v. Rainey, 987 F.2d at 1114-15. "Put another way, officials must
observe `general, well-developed legal principles.'" Doe v. Taylor
Indep. Sch. Dist., 15 F.3d 443, 455 (5th Cir.) (citation omitted),
cert. denied sub nom. Lankford v. Doe, 115 S. Ct. 70 (1994).
The Fifth Circuit has recently examined the right of
access to the courts in the context of qualified immunity. In
Foster v. City of Lake Jackson, 28 F.3d 425 (5th Cir. 1994), the
court held that a claim that city officials concealed information
during discovery in a civil suit was barred by qualified immunity.
The court rested its holding on the ground that in 1988, there was
no clearly established constitutional right to litigate free of
discovery abuses. Id. at 430.
Foster held that the right of access to courts, at least
as it was clearly established in 1988, was the facilitative right
to institute a suit without official resistance, blocks, or delay
to filing. Id. The court stated that even if a more broadly based
right had developed by 1994, it did not exist in 1988, which is the
time when the alleged conduct at issue in this case began.
Here, the claimed violation is not official resistance to
filing a lawsuit. Rather, the claimed violation is that after Hale
had filed and won a suit challenging law enforcement officials,
without official impediment or interference, he was retaliated
against for his successful litigation.
In Crowder v. Sinyard, 884 F.2d 804, 813 (5th Cir. 1989),
cert. denied, 110 S. Ct. 2617 (1990), the court recognized that
"courts have held that if state officials in some way retaliate
-11- against an individual for seeking redress through the courts, they
have violated that person's right of access to the courts."
Crowder, 884 F.2d at 813 n.9 (citations omitted).1 However,
because the Fifth Circuit was not faced with a claim of retaliation
for prior litigation, but rather with a claim of interference with
the right of access to the courts, it was not required to decide
the contours of such a right or whether it was "clearly
established."2
The Court in Anderson cautioned that "the right the
official is alleged to have violated must have been `clearly
established' in a more particularized, and hence, more relevant,
sense: The contours of the right must be sufficiently clear that
a reasonable official would understand that what he is doing
violates that right." Anderson, 483 U.S. at 640.
Hale alleged that Carl Townley, Plummer, and Fant took
actions in retaliation for Hale's earlier lawsuit. The proper
inquiry in this case is whether, in 1988, it was reasonable for
Carl Townley, Plummer, and Fant to have known that their conduct,
if undertaken for the subjective purpose of retaliating for the
1 The Fifth Circuit stated: "We cite these cases as general background and do not have occasion to approve or disapprove of their respective holdings." Crowder, 884 F.2d at 813 n.9. 2 In Crowder, the plaintiffs alleged that by causing or allowing plaintiffs' property seized during a search to be physically removed to another state, the defendants interfered with the plaintiffs' right of access to the courts — specifically, with their ability to use the court system to recover the property. The plaintiffs in Crowder did not allege that they were victims of retaliation for exercising their right of access to the courts. Nor did the plaintiffs claim that the defendants had attempted to cover up facts critical to the plaintiffs' lawsuits. Based on those facts, the court held that the plaintiffs did not state a constitutional claim.
-12- successful prosecution of a prior lawsuit, violated the First
Amendment.
There is no constitutional right to be free from official
investigation. U.S. v. Allibhai, 939 F.2d 244, 249 (5th Cir. 1991)
(citation omitted), cert. denied, 112 S. Ct. 967 (1992). The
district court held that there was no evidence to support the
conclusion that the investigation by or tactics of Carl Townley and
Plummer had violated Hale's Fourth Amendment rights.
As it was clearly established in 1988, the right of
access to the courts was limited to a facilitative right to
institute a suit without official impediment. Foster, 28 F.3d at
430. No broader right was established. Id. This court holds that
at the time of the conduct at issue, the constitutional tort of
retaliation against an individual for having filed and won a
lawsuit was not so clearly established that a reasonable official
would understand that actions taken with this intent violated the
First Amendment. Accordingly, the district court's denial of
summary judgment as to Hale's First Amendment retaliation claims
against Carl Townley, Plummer, and Fant is reversed.
C. Conspiracy
The district court held that there was a genuine issue of
fact as to whether Carl Townley, Plummer, Fant, Fox, and Stroud
conspired to retaliate against Hale for exercising his First
Amendment right of access to the courts. A conspiracy may be
charged under section 1983 as the legal mechanism through which to
impose liability on all of the defendants without regard to who
committed the particular act, but "a conspiracy claim is not
-13- actionable without an actual violation of section 1983."
Pfannstiel, 918 F.2d at 1187 (citations omitted).
In Pfannstiel, the court found that when each state
action alleged to have harmed the plaintiffs was determined to be
qualifiedly immune, there was no need to reach the issue of whether
a conspiracy existed to engage in those actions. Id. at 1187–88.
Similarly, in this case, all officers alleged to have violated
Hale's First Amendment rights are entitled to qualified immunity.
Therefore, the conspiracy claim is not actionable. The district
court's denial of summary judgment as to the conspiracy claims
against Carl Townley, Plummer, Fant, Fox, and Stroud is reversed.
III. Hale's Appeal
Hale appeals from the district court's grant of summary
judgment and refusal to alter or amend the judgment dismissing
defendants Larry Townley, Scaife, and Lewis. This court affirms
the district court as to Lewis but reverses as to Larry Townley and
Scaife.
Hale admits that he presented no summary judgment
evidence to show that Lewis had been involved in the Sandpiper raid
on March 15, 1991. Hale argues that there was evidence in the
defendants' summary judgment exhibits that Larry Townley and Scaife
were involved in that raid.
Upon review of the record, this court also finds that the
district court did not err in denying Hale's motion to alter or
amend the summary judgment granted in favor of Lewis, but did err
as to Larry Townley and Scaife. A district court has considerable
discretion in deciding whether to grant or deny a motion to alter
a judgment. Edward H. Bohlin Co., Inc. v. Banning Co., Inc., 6
-14- F.3d 350, 355 (5th Cir. 1993). The district court must strike the
proper balance between the need for finality and the need to render
just decisions on the basis of all the facts. Id.
If a party seeks to upset a summary judgment on the basis
of evidence that was not timely presented, the district court must
balance the following factors: (1) the reasons for the failure to
file the evidence in a timely fashion; (2) the importance of the
evidence to the moving party's case; (3) whether the evidence was
available before the summary judgment decision was made; and (4)
the likelihood that the non-moving party will suffer prejudice if
the motion to alter is granted. Lavespere v. Niagara Machine &
Tool Works, Inc., 910 F.2d 167, 174 (5th Cir. 1990), cert. denied,
114 S. Ct. 171 (1993); see also Waltman v. International Paper Co.,
875 F.2d 468, 473 (5th Cir. 1989).
There was original and supplemental summary judgment
evidence identifying Larry Townley and Scaife as two of the
officers who participated in, and used excessive force during, the
March 15, 1991 "raid." The district court abused its discretion by
denying the motion to alter the judgment dismissing the excessive
force claims against Larry Townley and Scaife.
Hale's untimely evidence of Lewis's involvement, which
included that Lewis pointed Hale out to another officer and that
Lewis admitted that he saw a "scuffle" occurring, is insufficient
to raise a genuine issue as to whether Lewis violated Hale's
constitutional rights. Because all officers alleged to have
violated Hale's First Amendment rights are entitled to qualified
immunity, the conspiracy claim against Lewis is not actionable.
-15- This court affirms the dismissal of the excessive force and
conspiracy claims against Lewis.
IV. Conclusion
This court DISMISSES the appeal of Stroud, Fox, and Fant
from the district court's denial of summary judgment based on
qualified immunity; REVERSES the district court's denial of summary
judgment as to the First Amendment claims against Carl Townley,
Plummer, and Fant; REVERSES the district court's denial of summary
judgment as to the claims against Carl Townley, Plummer, Fant, Fox,
and Stroud for conspiracy to violate Hale's right of access to the
courts; REVERSES the district court's order granting summary
judgment dismissing Larry Townley and Scaife; and AFFIRMS the
district court's order granting summary judgment as to Lewis. This
case is REMANDED to the district court for further proceedings
consistent with this opinion.
DISMISSED in Part; AFFIRMED in Part; REVERSED in Part;
Case Remanded.
-16-