Bob Thomas, Plaintiff-appellant, v. Harris County, et al., Defendants-appellees, 784 F.2d 648 (5th Cir. 1986)

Bob Thomas appeals from the district court's decision granting defendants' motion for summary judgment. We agree with the district court that there exist no genuine issues of material fact with respect to two of the defendants; we therefore affirm in part. However, because we believe that there is a disputed question of material fact as to whether the plaintiff was punished for having engaged in protected first amendment activity, and whether such punishment occurred pursuant to a conspiracy, we also reverse in part and remand.

Plaintiff-appellant Bob Thomas ("Thomas"), a Houston Police officer, filed suit in June, 1983, claiming that he had been punitively transferred out of the Houston Police patrol of the River Oaks subdivision in Houston, Texas, in violation of his first and fourteenth amendment rights, and that various individuals had conspired to have Thomas removed from the River Oaks patrol.¹  Although Thomas' complaint and brief before this court recount several instances of his outspokenness which allegedly embarrassed the Houston Police Department and led to retaliatory action, the basis for this lawsuit is a transfer which occurred on September 16, 1982.

Thomas began patrolling the River Oaks subdivision in Houston in late 1981. On September 9, 1982, Thomas arrested one of the private security guards employed by the River Oaks Property Owners, Inc. ("ROPO"). It was this arrest which triggered the events leading to this lawsuit. However, well before the evening of September 9, Thomas had noticed and complained of what he perceived to be the special treatment given to the River Oaks private security force by the Houston Police Department. He also believed that certain practices of the River Oaks private security force violated the Texas Private Investigators and Private Security Agencies Act. Tex.Rev.Civ.Stat. art. 4413(29bb) (Vernon 1976).²  Then, on the evening of September 9, Thomas took action and arrested a member of the River Oaks private security force who, while wearing his revolver, had entered a restaurant which serves alcoholic beverages.

The day after the arrest, one of the defendants, Lieutenant Webber ("Webber"), allegedly informed Thomas that he would be transferred immediately as punishment.³  However, Thomas was not immediately transferred because, according to Thomas, Webber's subordinates persuaded him that transferring Thomas would not be a good idea.

On September 13, a grand jury met to hear the case against the private security officer whom Thomas had arrested. The grand jury returned a no-bill.⁴  Two days later, another defendant, Townes G. Pressler ("Pressler"), the President of ROPO, presented the Houston Police Department's Internal Affairs Division ("IAD") with an official letter of complaint against Thomas from ROPO.⁵  The next day, September 16, precisely one day after ROPO filed its complaint against Thomas with the IAD, Thomas was transferred out of the River Oaks subdivision. The order to transfer Thomas came from two of Webber's superiors, also named as defendants here, Deputy Chief Dennis J. Storemski ("Storemski"), and Captain Dennis Schumann ("Schumann").

Thomas brought suit under 42 U.S.C. § 1983 alleging that his first and fourteenth amendment rights had been violated by the so-called retaliatory transfer which Thomas says was designed to punish him for having outspokenly criticized the favored treatment given the River Oaks subdivision. Thomas further asserted in his complaint that the denial of his rights occurred pursuant to a conspiracy among the named defendants.

Several different motions for summary judgment were filed by different groups of defendants. The district court granted each one. In its oral disposition of the motions, the district court stated that Thomas' activity, i.e., his outspoken criticism of the Houston Police Department's ostensible favoritism towards River Oaks, was not protected under the first amendment. In addition, the district court further stated that there was no record evidence supporting the allegations of conspiracy or punitive transfer. On appeal, Thomas argues that there are substantial issues of material fact concerning whether he was punitively transferred for having engaged in protected first amendment activity, and he further urges that the record also reflects questions of material fact regarding the conspiracy among the defendants to remove Thomas from the River Oaks area.⁶ 

Summary judgment is appropriate under Fed. R. Civ. P. 56(c) when "there is no genuine issue as to any material fact and ... the moving party is entitled to a judgment as a matter of law." The moving party has the burden of showing that these conditions are satisfied, United States Steel Corp. v. Darby, 516 F.2d 961 (5th Cir. 1975), and in ruling upon such a motion, the district court must look to the full record, including pleadings, affidavits, and depositions on file. Trevino v. Celanese Corp., 701 F.2d 397 (5th Cir. 1983). Upon review, this court will examine the same materials. Simon v. United States, 711 F.2d 740 (5th Cir. 1983).

A party opposing a motion for summary judgment may not simply rest on allegations of future proof, but must present pleadings which themselves reveal a question of material fact. Environmental Defense Fund v. Marsh, 651 F.2d 983, 991 (5th Cir. 1981). Moreover, once a motion for summary judgment is made and the movant carries its burden of showing that there exist no genuine issues of material fact, the non-movant "may not rest upon the mere allegations ... of his pleading, but ... must set forth specific facts showing that there is a genuine issue for trial." Fed. R. Civ. P. 56(e) (emphasis added); see Aladdin Oil Co. v. Texaco, Inc., 603 F.2d 1107, 1112 (5th Cir. 1979). We have stated that "the opposing party must be diligent in countering a motion for summary judgment ... and ... mere general allegations which do not reveal detailed and precise facts will not prevent the award of summary judgment." Franz Chemical Corp. v. Philadelphia Quartz, 594 F.2d 146, 150 (5th Cir. 1979). Rule 56 imposes a heavy burden on a party moving for summary judgment, but once the movant carries its initial burden, the opposing party must demonstrate, through "such facts as would be admissible in evidence," Fed. R. Civ. P. 56(e), that there is a genuine issue as to some material fact. This means that the party opposing the motion must proffer "sufficient evidence ... to require a judge or jury to resolve the parties' differing version of the truth at trial." First National Bank of Arizona v. Cities Service Co., 391 U.S. 253, 289, 88 S. Ct. 1575, 1592, 20 L. Ed. 2d 569 (1968).

This case involves numerous defendants (see supra note 1). Five different motions for summary judgment were filed in the district court: one on behalf of Townes Pressler and ROPO; one on behalf of John Holmes; one on behalf of Harris County; one on behalf of Lieutenant Webber; and one on behalf of the City of Houston, Mayor Whitmire, Chief Brown, former Chief Johnson, Assistant Chief Mitchell, Deputy Chief Storemski, and Captain Schumann.⁷  Thomas filed a single, rather short, response to these various motions. Attached to the response were only three pages from Thomas' deposition.⁸  Several of the defendants did attach to their motions for summary judgment substantial portions of Thomas' deposition, with the most significant excerpts being attached to defendant Webber's motion.⁹  After carefully reviewing all of the deposition testimony which the district court had before it, we conclude that Thomas' response to the various motions does not demonstrate the existence of any genuine issue of material fact with respect to Harris County, or John Holmes, but that summary judgment was inappropriate with respect to the remaining defendants.

With respect to defendants Holmes and Harris County, Thomas' complaint alleges no specific wrongdoing on the part of the County except insofar as Holmes is the district attorney for Harris County. Thomas asserts that Holmes conspired with Pressler and members of ROPO by "accept [ing] the unsubstantiated allegations of ROPO at face value and then present [ing] these allegations to a grand jury." Thomas' brief at 17. Thomas points to a single episode as supposedly exhibiting this conspiracy: a meeting between Holmes and the members of ROPO which purportedly took place several days before the grand jury returned a no-bill against the security officer whom Thomas had arrested. However, the deposition testimony on file clearly indicates that no such meeting ever occurred. Both Holmes and Pressler specifically denied that such a meeting had taken place. There are no countering affidavits in support of Thomas' assertion concerning this event about which he has no "personal knowledge." Fed. R. Civ. P. 56(e). Furthermore, absent any conspiracy, Holmes is absolutely immune from Sec. 1983 liability for any actions he carried out in his role as prosecutor. Imbler v. Pachtman, 424 U.S. 409, 96 S. Ct. 984, 47 L. Ed. 2d 128 (1976). And despite Thomas' assertion that Holmes "left his prosecutor's role behind" when he personally presented the case to the grand jury, we have previously explained that the decision whether or not to prosecute lies at the core of the prosecutorial function. McGruder v. Necaise, 733 F.2d 1146, 1148 (5th Cir. 1984). The district court's decision granting summary judgment for Harris County and John Holmes was therefore correct.

Thomas' complaint against ROPO and Pressler insists that members of ROPO, angry at Thomas for having arrested one of their private security guards, phoned Holmes, Harris County Constable Walter Rankin, and City of Houston Mayor Kathy Whitmire to plead their case against Thomas. In addition, ROPO filed a complaint concerning Thomas with the IAD, the resolution of which, claims Thomas, "leaves room for doubt as to the propriety of Officer Thomas' actions." Thomas' brief at 16. Thomas then concludes that " [t]hese specific acts provide the skeleton of a conspiracy to silence Officer Thomas' criticism." Id. In effect, Thomas asserts that the IAD complaint was filed as part of a design between ROPO and the Houston Police Department to have Thomas removed from the River Oaks patrol. Presumably, ROPO, Pressler, and the named Police Department and municipal officials conspired to remove Thomas because of his persistence in criticizing the favored treatment afforded the River Oaks subdivision. So read, Thomas' complaint turns on disputed issues of fact, the resolution of which by summary judgment was improper.

In addition, there is a question as to whether Thomas was in fact punitively transferred. Thomas' deposition reveals, through passages attached to Webber's motion for summary judgment, that, according to Thomas, Webber threatened to transfer him immediately on September 10, the day after Thomas arrested the private security guard. Webber denies having so threatened Thomas. Thomas was not in fact transferred until September 16, one day after ROPO filed a formal complaint with the IAD. Thomas' sworn allegations, coupled with this sequence of events, reveal a question of material fact as to whether a retaliatory transfer took place, as well as whether there was a conspiracy between ROPO and the named Houston Police Department and municipal officials to punish Thomas for having engaged in protected first amendment activity. With respect to those defendants, therefore, resolution of Thomas' complaint on a motion for summary judgment was improper.

We intimate no view on the merits of whether Thomas' engaging in protected first amendment activity in fact resulted in his being punitively transferred. We do note, however, that at least some of the activity in which Thomas engaged is protected by the first amendment.¹⁰  Specifically, Thomas' criticism of what he perceived to be special treatment afforded the River Oaks subdivision (and its private security force) addressed matters of public rather than purely private concern. Cf. Mt. Healthy City Board of Ed. v. Doyle, 429 U.S. 274, 97 S. Ct. 568, 50 L. Ed. 2d 471 (1977); Perry v. Sindermann, 408 U.S. 593, 92 S. Ct. 2694, 33 L. Ed. 2d 570 (1972).¹¹  Thomas' remarks were not merely "criticism directed at ... public official [s]," Connick v. Myers, 461 U.S. 138, 103 S. Ct. 1684, 1691, 75 L. Ed. 2d 708 (1983), nor did they constitute nothing more than complaints over internal police department affairs. Thomas asserted, in effect, that a particular segment of the community is singled out for special treatment, and his outspokenness reflected a view that this favoritism is unfair. " [W]e believe it apparent that the issue of whether" one segment of the community is receiving favored treatment from the police "is a matter of interest to the community upon which it is essential that public employees be able to speak out freely without fear of retaliatory dismissal." Connick, 103 S. Ct. at 1691.¹²  Since Thomas' speech touched on matters of public concern, the district court must determine whether Thomas' participation in protected first amendment activity prompted his superiors to retaliate against him, and whether the transfer exhibited such retaliation or punishment.

Defendant Holmes has requested attorney's fees under 42 U.S.C. § 1988 which authorizes the court to award fees to the prevailing defendant if the plaintiff's claim is frivolous or if the plaintiff continues to litigate after it clearly becomes so. See Christiansburg Garment Co. v. EEOC, 434 U.S. 412, 423, 98 S. Ct. 694, 701, 54 L. Ed. 2d 648 (1978); Lopez v. Aransas County Independent School District, 570 F.2d 541, 545 (5th Cir. 1978). Although we affirm the district court's granting of summary judgment with respect to Holmes, we also agree with the district court that Thomas' claim was not filed frivolously, and we do not believe that this appeal is frivolous. Accordingly, the request for attorney's fees is denied, and the judgment is AFFIRMED in part, REVERSED in part, and REMANDED.