Lаtisha McFADDEN, Appellant v. Greg OLESKEY, Rogelio Sanchez, Tamara Joseph, and Michael Pollard, Appellees.
No. 03-09-00187-CV.
Court of Appeals of Texas, Austin.
Aug. 19, 2010.
329 S.W.3d 646
Frederick A. Hawkins, Assistant City Attorney, City of Austin-Law Department, Austin, TX, for appellees.
Before Chief Justice JONES, Justices WALDROP and HENSON.
OPINION
G. ALAN WALDROP, Justice.
Appellant Latisha McFadden, after being found not guilty on a criminal charge of assault on a police officer, filed suit against appellees Rogelio Sanchez, Greg Oleskey, Tamara Joseph, and Michael Pollard—the four police officers who procured her arrest. The district court granted appellees’ plea to the jurisdiction and motion for summary judgment, and entered a take nothing judgment against McFadden. We affirm the judgment of thе district court with respect to McFadden‘s assault and false imprisonment claims, based on limitations. However, we conclude that McFadden‘s malicious prosecution claim could not have been brought under the Texas Tort Claims Act against the governmental unit that employs appellees and, therefore,
Factual and Procedural Background
Latisha McFadden was arrested around 3 a.m. on July 14, 2000, for disregarding а police officer‘s lawful order, see
The parties’ descriptions of the events surrounding McFadden‘s arrest differ. According to McFadden, she and her friend Sonya Bolden were on Sixth Street in downtown Austin returning to her car after the club they had gone to closed for the night. When a man she did not know attacked her verbally from a long distance away, she responded in a tone she says was аppropriate. A police officer rode up on his bicycle, said nothing to the man, and allegedly said to McFadden “something like Bitch shut your fucking ass up and leave.” McFadden then “shot the finger” at the unidentified man while he was leaving. McFadden alleges the police officer then jumped off his bike, grabbed McFadden‘s left arm, and twisted it behind her back. When McFadden asked for an explanation, another officer walked up behind her and sprayed her with pepper spray. The officers then took her feet out from under her, pulled her hair, kicked and hit her on her head and side, and dragged her, all despite the fact that she was not рhysically resisting arrest. As she was screaming in pain, she claims the police officers were laughing. McFadden‘s friend Bolden gave a similar account, adding that “it appeared to me that one of the officers ran his arm up under Latisha‘s shorts.”
According to appellees, Officer Sanchez observed a verbal disturbance between McFadden and a man on Sixth Street, and McFadden was being verbally and physically aggressive toward the man. A large group had gathered, watching the disturbance. When Sanchez ordered both of them to leave, the man complied but McFadden did not. Instead, she continued to use profane language and gestures and stated she would leave “when she was ready.” Sanchez decided to arrest McFadden for disregarding his order to leave. At this point, Officer Oleskey arrived, and when both officers attempted to handcuff her, she pulled her arms away and pushed and kicked at the officers. As she continued to resist (according to the officers), Oleskey grabbed her by the hair and took her to the ground. Once on the ground, McFadden kicked Oleskey with her high heel shoes, causing a two-inch cut, and pulled his bike helmet off his head and scratched his face, causing several cuts. Officers Joseph and Pollard had arrived by this point. As Joseph joined the attempt to restrain McFadden, McFadden kicked her repeatedly. Officer Pollard pepper sprayed McFadden, and the four officers were able to place her in handcuffs and her legs in flex-cuffs.
Following a criminal trial, the jury found McFadden not guilty of assault, and the court entered judgment on the jury‘s verdict. On April 20, 2004, McFadden filed this lawsuit against appellees, asserting claims of assault, false imprisonment, malicious prosecution, and conspiracy to commit malicious prosecution. Appellees filed a plea to the jurisdiction and motion for summary judgment. On March 4, 2009, the district court granted appellees’ plea and motion and entered a take nothing judgment against McFadden. McFadden appeals.
Standard of Review
We review summary judgments de novo. Provident Life & Accident Ins. Co. v. Knott, 128 S.W.3d 211, 215 (Tex. 2003). We also review the granting of a plea to the jurisdiction de novo. Whether a court has subject-matter jurisdiction and whether a plaintiff has alleged facts that affirmatively demonstrate subject-matter jurisdiction are questions of law that we review de novo. Texas Dep‘t of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 226 (Tex. 2004).
Assault and False Imprisonment Claims
McFadden asserts assault and false imprisonment claims against appellees. In their motion for summary judgment, appellees argued that such claims are barred by limitations. Assault and false imprisonment claims are governed by a two-year statute of limitations. See
McFadden argues, however, that based on Heck v. Humphrey limitations on her claims did not begin to run until the criminal proceedings against her were final. In Heck, the Supreme Court held that a federal section 1983 cause of action for damages that is attributable to an unconstitutional conviction or sentence does not accrue until the conviction or sentence has been invalidated. See 512 U.S. 477, 489-90 (1994). The Court found such a cause of action analogous to the common-law cause of action for malicious prosecution, an element of which is that the prior criminal proceeding was terminated in favor of the plaintiff. See id. at 484. McFaddеn contends that because her assault and false imprisonment claims could impact or be impacted by the disposition of the criminal case, the applicable statute of limitations cannot run until the criminal matter is resolved.
However, the Supreme Court has spoken to this issue. In Wallace v. Kato, the Court held that limitations for a section 1983 claim based on false arrest or false imprisonment begins to run when the alleged false imprisonment ends. See 549 U.S. 384, 389-92 (2007). The plaintiff in Wallace contended that, under Heck, his suit did not accrue until the State had dropped its charges against him. See id. at 392. The Court rejected the plaintiff‘s contention and held that the Heck rule was limited to circumstances in which a conviction or sentence existed and had not yet been invalidated. Seе id. at 392-93. In this case, as in Wallace, no conviction or sentence was ever imposed against McFadden, and therefore, the Supreme Court‘s decision in Heck has no effect on the applicable statute of limitations.1
McFadden also argues that the limitations period should be tolled during the criminal proceedings based on Hughes v. Mahaney & Higgins, 821 S.W.2d 154 (Tex. 1991). The Texas Supreme Court in Hughes held that for a cause of action for legal malpractice allegedly committed by an attorney while providing legal services in the prosecution or defense of a claim that results in litigation, the limitations period is tolled until all appeals on the underlying claim are exhausted. See id. at
McFadden filed suit more than two years after her assault and false imprisonment claims accrued, and she does not identify any tolling rule applicable to her claims. Therefore, those claims are barred by limitations. We affirm the district court‘s order granting appellees’ motion for summаry judgment with respect to McFadden‘s claims of assault and false imprisonment.
Malicious Prosecution and Conspiracy Claims
McFadden asserts malicious prosecution and conspiracy claims against appellees. Appellees argue that the district court‘s take nothing judgment on McFadden‘s malicious prosecution claim can be affirmed on three independent bases: (1) appellees are entitled to the affirmative defense of official immunity as a matter of law; (2) appellees must be dismissed as defendants in accordance with subsections (a) and (f) of
Rule 11 Agreement
On March 12, 2008, appellees filed a plea to the jurisdiction and motion for summary judgment. Over the next week, both parties sought continuances. McFadden filed a motion to continue the hearing on appellees’ plea to the jurisdiction, and appellees filed a motion to continue the trial setting. On March 20, 2008, McFadden filed with the district court the parties’ signed Rule 11 agreement, under which both the hearing and the trial setting were continued, and which provided as follows:
The Defendant will not file any additional dispositive motions and will only go forward on the pending Motion for Summary Judgment on the issue of the statute of limitations defense. Also, Defendant will go forward on its pending Plea to the Jurisdiction.
Despite this provision of the agreement, on June 2, 2008, appellees filed a “Second Plea to the Jurisdiction and Motion for Summary Judgment.”
The parties’ Rule 11 agreement is in writing, signed, and filed as part of the record. Thus, under
The district court should have considered the March 2008 plea and motion for summary judgment, but nоt the June 2008 plea and motion for summary judgment.3 Having so concluded, we must determine which bases for judgment on the malicious prosecution claim survive.
Appellees argued that, as police officers acting within the scope of their authority, they were entitled to official immunity with respect to McFadden‘s malicious prosecution claim. However, this argument was made only in appellees’ motion for summary judgment, and appellees agreed to go forward on that motion only on their statute of limitations defense. Therefore, summary judgment on the malicious prosecution claim was not appropriate on the basis of offiсial immunity per the Rule 11 agreement.
In their plea to the jurisdiction, appellees argued that they must be dismissed from the lawsuit in accordance with section 101.106 of the Texas Civil Practice and Remedies Code. McFadden contends that section 101.106 cannot be applied with respect to her malicious prosecution claim because the March 2008 plea does not specifically identify this claim in the context of section 101.106. We disagree. In their March 2008 plea, appellees did not expressly restrict their section 101.106 arguments to specific claims. Instead, they broadly referred to McFadden‘s “claims in her lawsuit,” and also specifically referred to McFadden‘s “intentional tort claims.” However, we agree
Finally, we conclude that appellees’ argument that there is no evidence to support some of the elements of McFadden‘s malicious prosecution claim remains at issue. Such basis for dismissal was fully set out in appellees’ March 2008 plea to the jurisdiction.
Texas Civil Practice and Remedies Code Section 101.106(f)
Chapter 101 of the civil practice and remedies code is the Texas Tort Claims Act. See
(a) The filing of a suit under this chapter against a governmental unit constitutes an irrevocable election by the plaintiff and immediately and forever bars any suit or recovery by the plaintiff against any individual employee of the governmental unit regarding the same subject matter.
(b) The filing of a suit against any employee of a governmental unit constitutes an irrevocable election by the plaintiff and immediately and forever bars any suit or recovery by the plaintiff against the governmental unit regarding the same subject matter unless the governmental unit consents.
...
(e) If a suit is filed under this chapter against both a governmental unit and any of its employees, the employees shall immediately be dismissed on the filing of a motion by the gоvernmental unit.
(f) If a suit is filed against an employee of a governmental unit based on conduct within the general scope of that employee‘s employment and if it could have been brought under this chapter against the governmental unit, the suit is considered to be against the employee in the employee‘s official capacity only. On the employee‘s motion, the suit against the employee shall be dismissed unless the plaintiff files amended pleadings dismissing the employee and naming the governmental unit as defendant on or before the 30th day after the date the motion is filed.
McFadden argues that appellees were not acting within the general scope of their employment. “An official acts within the scope of her authority if she is discharging the duties generally assigned to her.” City of Lancaster v. Chambers, 883 S.W.2d 650, 658 (Tex. 1994). Appellees were on duty, were attempting to maintain the peace, and took actions to arrest McFadden when they determined that she had refused to comply with а police officer‘s order. See Texas Dep‘t of Pub. Safety v. Perez, 905 S.W.2d 695, 697-98, 700 (Tex. App.—Houston [14th Dist.] 1995, writ denied) (holding that officer was acting within scope of authority notwithstanding plaintiff‘s allegation that handcuffs were unnecessarily tight). McFadden relies on two cases for her argument, but each case involved situations in which it was not clear that the employee was discharging his assigned duties. See Kelemen v. Elliott, 260 S.W.3d 518, 520, 524 (Tex. App.—Houston [1st Dist.] 2008, no pet.) (finding no evidence that officer was acting in scope of employment when he kissed fellow officer without consent while on duty); Wallace v. Moberly, 947 S.W.2d 273, 276-77 (Tex. App.—Fort Worth 1997, no writ) (finding issue of fact on whether off-duty game warden who pulled gun on teenagers cutting in fast food restaurant‘s drive-through line wаs acting within scope of authority). We conclude that appellees’ conduct was within the general scope of their employment.
Next, we consider whether McFadden‘s malicious prosecution claim “could have been brought under this chapter against the governmental unit.” See
In Garcia, the supreme court construed the phrase “under this chapter” in
Appellees acknowledge that a malicious prosecution claim is an intentional tort and, therefore, the City of Austin has sovereign immunity against such a claim. See
Our conclusion is consistent with the language of the entire subsection. Subsection (f) authorizes the plaintiff to file amended pleadings naming the governmental unit as defendant. See
Our conclusion is also consistent with the purpose of section 101.106. According to the court in Garcia, the purpose of section 101.106 is to require the plaintiff to choose among her available theories of recovery at the outset. See 253 S.W.3d at 657.
By requiring a plaintiff to make an irrevoсable election at the time suit is filed between suing the governmental unit under the Tort Claims Act or proceeding against the employee alone, section 101.106 narrows the issues for trial and reduces delay and duplicative litigation costs.... [T]he Legislature intended to reduce the delay and expense associated with allowing plaintiffs to plead alternatively that the governmental unit is liable because its employee acted within the scope of his or her authority but, if not, that the employee acted independently and is individually liable.
Id. Under section 101.106, a plaintiff can only choose one class of defendants—the governmentаl unit or its employees—and that choice is irrevocable. See
while section 101.106 ensures that the plaintiff can pursue only one option, appellees’ position would result in section 101.106 removing the only available option. Under appellees’ position, section 101.106(f) would result in plaintiffs no longer having a claim in the event a governmental employee, acting within the general scope of his employment, committed an intentional tort. Such a result finds no support in the purpose of section 101.106 identified in Garcia. Section 101.106 is intended to make the plaintiff choose between options. It is not intended to remove an option when it is the only one available.
We recognize that there is a split among the courts of appeals on this issue.6 Based on the plain language of section 101.106(f), and consistent with the purpose of section 101.106 as stated by the supreme court in Garcia, we agree with those courts that have concluded the phrase “could have been brought” means that the Tort Claims Act waives immunity for the claim at issue. Therefore, the district court erred to the extent it dismissed McFadden‘s malicious prosecution claim based on
Evidence in Support of Malicious Prosecution Claim
A claim for malicious prosecution requires the plaintiff to prove that (1) a criminal prosecution was commenced against her, (2) the defendants initiated or procured the prosecution, (3) the prosecution terminated in her favor, (4) she is innocent of the charges, (5) the defendants lacked probable cause to initiate the prosecution, (6) the defendants acted with malice, and (7) she suffered damages. Kroger Tex. Ltd. P‘ship v. Suberu, 216 S.W.3d 788, 792 n. 3 (Tex. 2006). Appellees argue that there is no evidence that they initiated or procurеd the prosecution, that McFadden is innocent, that they lacked probable cause, or that they acted with malice.8
A plaintiff may defeat a no-evidence motion for summary judgment by producing more than a scintilla of evidence establishing the existence of each challenged element. See Ford Motor Co. v. Ridgway, 135 S.W.3d 598, 600 (Tex. 2004). More than a scintilla of evidence exists if the evidence rises to a level that would
Regarding the challenged elements of McFadden‘s malicious prosecution claim, appellees rely mostly on their contention that McFadden‘s аccount of her arrest is self-serving and unsupported, while appellees’ accounts are consistent and, therefore, true. However, in reviewing a motion for summary judgment, we accept as true all evidence favorable to the non-movant, making every reasonable inference and resolving all doubts in the non-movant‘s favor. Nixon v. Mr. Prop. Mgmt. Co., 690 S.W.2d 546, 548-49 (Tex. 1985). A fact-finder who resolves the factual disputes in favor of McFadden‘s version of events could reasonably conclude that McFadden was innocent of the charges and that appellees lacked probable cause and acted with malice.
As to the remaining element of McFadden‘s malicious prosecution claim at issue, appellees contend that they did not initiate or procure the prosecution.
A person procures a criminal prosecution if his actions were enough to cause the prosecution, and but for his actions the prosecution would not have occurred. A person does not procure a criminal prosecution when the decision whether to prosecute is left to the discretion of another, including a law enforcement official or the grand jury, unless the person provides information which he knows is false. A criminal prosecution may be procured by more thаn one person. Browning-Ferris Indus., Inc. v. Lieck, 881 S.W.2d 288, 293 (Tex. 1994). Appellees allege that the decision whether to prosecute McFadden was left to the discretion of another. However, such allegation does not impair McFadden‘s claim if appellees provided information that they knew was false. See id. A fact-finder who resolves the factual disputes in favor of McFadden‘s version of events could reasonably conclude that appellees provided information that they knew was false. Appellees also allege that the decision to prosecute would have been made even without their descriptions of McFadden‘s actions. However, we may infer causation when the only information relied on in deciding to prosecute came from the defendants. See King v. Graham, 126 S.W.3d 75, 79 (Tex. 2003). The affidavit of warrant of arrest and detention states that information was provided by Sanchez, Oleskey, and Joseph, and there is evidence in the record that Sanchez, Oleskey, and Pollard testified on behalf of the State at McFadden‘s criminal trial. Appellees do not identify any source of information used to prosecute McFadden other than themselves. Therefore, there is more than a scintilla of evidence that appellees procured McFadden‘s prosecution.
Having rejеcted each of appellees’ arguments in opposition to McFadden‘s malicious prosecution claim, we conclude that the district court erred in entering a take nothing judgment against McFadden with respect to her malicious prosecution and conspiracy claims.9
Conclusion
We conclude that the district court correctly granted appellees’ motion for summary judgment with respect to McFadden‘s claims of assault and false
G. ALAN WALDROP
Justice