United States Court of Appeals Fifth Circuit F I L E D REVISED NOVEMBER 12, 2004 October 22, 2004 IN THE UNITED STATES COURT OF APPEALS Charles R. Fulbruge III FOR THE FIFTH CIRCUIT Clerk

No. 03-51171

HAROLD LLOYD SHIELDS; ET AL

Plaintiffs

DAN BALDWIN, Administrator for the Estate of Harold Lloyd Shields, Deceased

Appellant

v.

CAROL L TWISS; KERR COUNTY TEXAS

Defendants - Appellees

Appeal from the United States District Court for the Western District of Texas, San Antonio

Before KING, Chief Judge, and BARKSDALE and PICKERING, Circuit Judges.

KING, Chief Judge:

Plaintiff Harold Shields filed this suit after officials in

Kerr County, Texas dropped charges against him for the aggravated

sexual assault of a child. Claiming that he never should have

been charged in the first place, Shields sued Kerr County and two

county employees for alleged violations of federal and state

laws. During the pendency of the lawsuit, Shields attempted to

1 stay the case to depose members of the grand jury that indicted

him. The district court issued orders that: (1) quashed the

depositions of the grand jurors; (2) denied Shields’s requests to

stay or continue the case while he sought state-court approval to

depose the grand jurors; and (3) granted summary judgment on all

counts in favor of the defendants. Shields appeals these

rulings. For the following reasons, we AFFIRM the judgment of

the district court.

I. FACTUAL AND PROCEDURAL BACKGROUND

In November 1999, Kerr County Sheriff’s Deputy Carol L.

Twiss began investigating the sexual assault of a young girl,

“K.S.” During the course of the investigation, K.S. told

investigators that her grandfather and uncle had molested her.

She also said that two non-family members--one of whom she

referred to as “Mr. M”--were involved.

Deputy Twiss suspected that Harold Lloyd Shields was Mr. M.

Initially, the principal ground for suspicion appears to have

been the fact that Shields was acquainted with K.S.’s

grandfather. Subsequently, during an interview conducted by

Deputy Twiss and others, K.S. was presented with a photographic

lineup and identified a picture of Shields as resembling Mr. M.

In addition, Deputy Twiss and others interviewed Shields and

considered several of his responses suspicious.

Based on their investigation, Kerr County officials decided

to prosecute Shields. They began by seeking a grand-jury

2 indictment against him. As part of this process, Deputy Twiss

filed an affidavit and testified before the grand jury.

Ultimately, the grand jury indicted Shields on three counts of

aggravated sexual assault of a child. Shields subsequently

surrendered to Kerr County officials, was arrested, and paid a

non-refundable bond fee of $10,000 to secure his release pending

trial. Before trial, however, K.S. recanted her allegations

concerning Mr. M, and Kerr County dismissed the charges against

Shields.

Shields now contends that Deputy Twiss failed to conduct an

appropriate investigation. According to Shields, had an

appropriate investigation been carried out, it would have

revealed his innocence. In support of this contention, he points

to a series of facts that were inconsistent with his being Mr. M.

For example, due to impotence, he was unable to perform some of

the acts that K.S. alleged were done to her. Additionally, he

did not move to Texas until approximately two years after K.S.

said that Mr. M began molesting her. Shields also contends that

the photographic lineup shown to K.S. was flawed and prejudicial

because only the photograph of Shields bore physical

characteristics similar to K.S.’s description of Mr. M. Angered

by these perceived lapses on the part of Deputy Twiss and Donnie

Coleman, the Kerr County Assistant District Attorney who

3 prosecuted him, Shields sued.1

In September 2001, Shields filed his second amended

complaint. In it, he named as defendants Deputy Twiss and

Assistant District Attorney Coleman in their individual

capacities.2 He also named Kerr County, Texas as a defendant.

Proceeding under

, Shields alleged in his

second amended complaint that each of the defendants violated his

constitutional rights while acting under the color of state law.

Specifically, Shields asserted claims of unreasonable arrest,

unreasonable detention, and malicious prosecution under the

Fourth and Fourteenth Amendments. He further averred that Deputy

Twiss and Assistant District Attorney Coleman failed to conduct a

reasonable investigation. Moreover, he contended that Kerr

County should be held liable for these violations of his

constitutional rights because it failed to supervise Deputy Twiss

properly and to provide her with a manageable caseload, thereby

preventing her from conducting a reasonable investigation.

Similarly, he asserted that Kerr County did not properly train or

1 After Shields’s death in June 2002, Holly Rena Shields Robinson, the administrator of his estate, was substituted as the plaintiff in this case. Subsequently, Robinson was disqualified from being Shields’s personal representative by the District Court of McPherson County, Kansas, and Daniel L. Baldwin was appointed as the new administrator and personal representative. Accordingly, in June 2004, this court granted a motion to substitute Daniel Baldwin as the appellant. In the interest of clarity, the court will refer to the appellant as “Shields.” 2 On appeal, the claims against Donnie Coleman were dismissed by agreement of the parties.

4 supervise Deputy Twiss in the creation and presentation of

photographic lineups. Finally, Shields invoked the district

court’s supplemental jurisdiction and pleaded four tort claims

under Texas law against Twiss and Coleman: false arrest, false

imprisonment, malicious prosecution, and negligent investigation.

This case was originally assigned to the late Judge H.F.

Garcia. During discovery, Shields sought to depose several

members of the state grand jury that indicted him, ostensibly to

show that the indictment they returned was faulty because

exculpatory evidence had been withheld from them. The defendants

moved to quash the subpoenas, arguing that both federal and state

law require the proceedings of grand juries to be kept secret.

In response to these motions to quash, Shields moved the court

for leave to file a consolidated response. In his consolidated

response, Shields noted that there were no existing records of

the grand-jury proceedings, and he contended that, as a result,

he needed to depose the grand jurors to rebut the defendants’

reliance on the indictment to preclude his constitutional claims.

On January 7, 2002, the district court issued an order

granting the defendants’ motions to quash and ordering Shields’s

counsel not to contact any member of the Kerr County grand jury

that indicted Shields. This order was signed “Fred Biery

[district judge] for H.F. Garcia.” One day later, Judge Garcia

granted Shields’s motion to file a consolidated response.

Concerned that the court had not considered his consolidated

5 response when ruling on the motions to quash, Shields promptly

filed a motion for reconsideration, which then-District Judge

Edward Prado summarily denied.

Undeterred, Shields next petitioned a Texas state court to

permit him to depose the grand jurors. He also asked the

district court to stay this case pending the outcome of the

ancillary state-court proceeding. Judge Biery denied Shields’s

request for a stay in August 2002.

Each defendant filed a motion for summary judgment in March

2003. Later that month, this case was reassigned to Judge Royal

Furgeson. In July 2003, Judge Furgeson granted the defendants’

motions for summary judgment.

In his decision granting summary judgment for the

defendants, Judge Furgeson first held that Shields failed to

create a genuine issue of fact concerning whether Deputy Twiss

and Assistant District Attorney Coleman withheld information from

the grand jury. Accordingly, Judge Furgeson held that the grand

jury’s finding of probable cause precluded Shields’s Fourth

Amendment claims regarding his arrest and imprisonment. Judge

Furgeson further stated that even if the indictment had not been

returned, Shields’s claims would still fail because he did not

show that Twiss and Coleman should be denied qualified immunity

for acting unreasonably in determining that probable cause

existed. Second, Judge Furgeson found that Shields’s malicious-

prosecution claim was also precluded by the grand jury’s finding

6 of probable cause. Additionally, according to Judge Furgeson,

Shields’s malicious-prosecution claim failed because he did not

allege that either Twiss or Coleman acted with malice. Third,

Judge Furgeson found that there was no authority supporting a

constitutional claim for “unreasonable investigation.” Fourth,

Judge Furgeson found that Kerr County could not be held liable

because Shields put forward no evidence of any constitutional

violation. Likewise, Judge Furgeson found that Shields put

forward no evidence showing that Kerr County had a policy or

custom encouraging the use of unconstitutional photographic

lineups. Finally, Judge Furgeson found that summary judgment in

favor of the defendants was appropriate on Shields’s state-law

claims. In support of this conclusion, Judge Furgeson stated

that Shields’s failure to establish a genuine issue of fact

concerning his constitutional claims doomed his state-law claims

and, alternatively, that Shields had not presented evidence that

Twiss and Coleman should be denied official immunity under Texas

state law. Accordingly, Judge Furgeson granted summary judgment

for the defendants on all counts and dismissed Shields’s suit

with prejudice.

After summary judgment was granted against him, Shields

filed a motion for reconsideration under Rule 59. In this

motion, he asked the district court to vacate its final judgment

and stay the case while he appealed to the Texas Supreme Court an

adverse state-court ruling regarding his request to depose the

7 grand jurors. Judge Furgeson denied Shields’s motion, noting

that the district court had itself considered the discoverability

of the grand jurors’ testimony and refused to permit the

depositions.

Following the denial of his motion for reconsideration,

Shields filed the present appeal.

II. DISCUSSION

Shields raises three issues in his appeal. First, he

maintains that the district court erred in quashing the

depositions of the grand jurors. Second, he asserts that the

district court should have granted his request for a stay pending

the outcome of the ancillary state-court litigation. Third, he

contends that the district court erroneously determined that

there exist no genuine issues of material fact preventing the

entry of summary judgment. This court examines each of these

claims in turn.

A. The Request To Depose Grand Jurors

The court begins with Shields’s claim that the district

court erred when it quashed the depositions of the grand jurors.

According to Shields, since no record existed of the grand jury’s

proceedings, he needed to depose members of the grand jury to

prove that Deputy Twiss and Assistant District Attorney Coleman

withheld information from the grand jury. Shields contends that

by improperly quashing these depositions, the district court made

it impossible for him to prove his malicious prosecution and

8 civil rights claims.

This court reviews a district court’s decision to quash

deposition subpoenas for abuse of discretion. Theriot v. Parish

of Jefferson,

(5th Cir. 1999); Tiberi v. CIGNA

Ins. Co.,

(5th Cir. 1994).

At the outset, the court notes that under both federal and

state law, a general rule of secrecy shrouds the proceedings of

grand juries. See FED. R. CRIM. P. 6(e); Douglas Oil Co. of Cal.

v. Petrol Stops N.W.,

(1979); TEX. CODE CRIM.

PROC. ANN. art. 20.02 (Vernon Supp. 2004); In re 5 Byrd Enters.,

(Tex. App.--Beaumont 1998, no pet.). Even

so, both federal and Texas law permit discovery of grand jury

material when the party seeking discovery demonstrates a

“particularized need” for the material. United States v. Procter

& Gamble Co.,

(1958); accord FED. R. CRIM. P.

6(e)(3)(E)(i); TEX. CODE CRIM. PROC. ANN. art. 20.02(d); In re 5

Byrd Enters.,

. A party claiming a

particularized need for grand jury material under Rule 6(e) has

the burden of showing “that the material [it] seek[s] is needed

to avoid a possible injustice in another judicial proceeding,

that the need for disclosure is greater than the need for

continued secrecy, and that [its] request is structured to cover

only material so needed.” Douglas Oil Co.,

.

This burden must be met even when the grand jury in question has

concluded its operations, as is the case here.

While a

9 party can in limited circumstances obtain grand jury material by

showing a particularized need, the need for protection of the

workings, integrity, and secrecy of grand jury proceedings is a

well-established, long-standing public policy. The secrecy of

the grand jury proceedings is not something that is intruded into

except in rare circumstances.

In the present case, Shields has not shown a particularized

need for compelling the disclosure of grand jury information,

much less for compelling the depositions of grand jury members.

Shields claims that he needs to depose members of the grand jury

to prove that information was withheld from them. He has not,

however, put forward any evidence whatsoever showing that Twiss

or Coleman withheld information from the grand jury, a point

noted by the district court.3 Robinson v. Twiss, No. SA-01-CA-

0289-RF, slip op. at 9-10 (W.D. Tex. Jul. 9, 2003) (holding that

Shields provided no concrete evidence for his claim that

information was withheld from the grand jury). Twiss,

conversely, has testified under oath that she presented all

relevant information in her possession--both incriminating and

exculpatory--to the grand jury. Likewise, Donnie Coleman, the

assistant district attorney who presented the case against

Shields to the grand jury, testified under oath that Twiss gave

3 Indeed, for the most part, Shields does not allege that Twiss even possessed exculpatory information; rather, he maintains that she would have learned of exculpatory details if she had conducted a reasonable investigation.

10 the grand jury “the things . . . that matched up [and] the things

. . . that didn’t match up.”

Because Shields has utterly failed to rebut Twiss and

Coleman’s sworn testimony, the district court had no reason to

believe that any useful information would be uncovered if Shields

were allowed to depose the grand jurors. Without some evidence

to support Shields’s claims that the defendants withheld

exculpatory evidence, the district court certainly had no reason

to believe that these depositions were necessary to “avoid a

possible injustice,” one of the elements required for a showing

of a particularized need for grand jury material. See Douglas

Oil Co.,

(holding that a party claiming a

particularized need for grand jury material must show that

disclosure is necessary to avoid a possible injustice in another

judicial proceeding). Shields has presented no evidence that

would justify a fishing expedition into the proceedings of the

grand jury. Accordingly, the district court did not abuse its

discretion when it granted the motion to quash.

Even if Shields had put forward evidence of his need for

grand jury material--something he has not done--there is still

the question of whether he could ever compel the depositions of

grand jury members. Shields has pointed to no authority for the

proposition that one can take the depositions of grand jury

members when, as is the case here, there is no transcript of the

grand jury proceeding. This court, like other courts, is unaware

11 of any authority supporting this proposition. See, e.g., United

States v. Roethe,

(D.C. Wis. 1976)

(“Furthermore, [the defendant] has suggested no authority, and I

am aware of none, in support of his request to conduct an

examination of the grand jurors.”). If depositions of grand

jurors could ever be taken--a matter as to which this court

expresses no opinion--it would take a far more substantial

showing of particularized need than what Shields has made here.4

Thus, the district court acted well within the bounds of its

discretion when it granted the motion to quash Shields’s

deposition notices.

B. The Request For A Stay

The court next turns to Shields’s claim that the district

court erred in denying his request to stay, abate, or continue

its disposition of the case pending further discovery.

This court reviews a district court’s denial of a motion for

continuance brought under FED. R. CIV. P. 56 for abuse of

discretion. See Liquid Drill, Inc. v. U.S. Turnkey Exploration,

Inc.,

(5th Cir. 1995); Solo Serve Corp. v.

Westowne Assoc.,

(5th Cir. 1991).

Both before and after summary judgment was granted against

4 Additionally, had Shields demonstrated a particularized need for deposing the grand jurors, the court would still have to address whether it can revisit the state court’s refusal to permit the depositions. Because Shields did not demonstrate a particularized need, however, the court need not reach this question.

12 him, Shields sought, and was denied, a stay or continuance from

the district court pending the final resolution of the collateral

proceeding that he initiated in state court in pursuit of

permission to depose the grand jurors. Shields now contends that

by not staying or continuing the case pending resolution of this

state-court litigation, the district court denied him a full and

fair opportunity to discover information essential to his

opposition to summary judgment, a denial that constitutes

reversible error. In support of this claim, Shields invites the

court’s attention to Anderson v. Liberty Lobby,

(1986), which holds that when a party is not given a full and

fair opportunity to discover information essential to its

opposition to summary judgment, the limitation on discovery is

reversible error.

Shields’s appeal of the district court’s denial of his

requests for a stay or continuance is undermined by the fact that

the state-court litigation has now been resolved against Shields.

Specifically, the Texas Supreme Court denied review in the

ancillary state-court proceeding on February 13, 2004, thereby

making permanent the state trial court’s denial of Shields’s

discovery request. In re Grand Jury Proceedings 198.GJ.20,

(Tex.App.--San Antonio 2003, pet. denied).

Consequently, the issue of whether the proceedings in this suit

should have been stayed until the Texas Supreme Court acted is

moot and need not be addressed on the merits by this court.

13 C. The Decision To Grant Summary Judgment

Finally, the court turns to Shields’s claim that the

district court erred by granting summary judgment in favor of the

defendants.

This court reviews summary judgments de novo, applying the

same standard as the district court. See Fierros v. Tex. Dept.

of Health,

(5th Cir. 2001). Specifically,

“summary judgment is proper ‘if the pleadings, depositions,

answers to interrogatories, and admissions on file, together with

the affidavits, if any, show that there is no genuine issue as to

any material fact and that the moving party is entitled to a

judgment as a matter of law.’” Celotex Corp. v. Catrett,

(1986) (quoting FED. R. CIV. P. 56(C)). Where, as

here, the burden of production at trial ultimately rests on the

non-movant, “the movant must merely demonstrate an absence of

evidentiary support in the record for the non-movant’s case.”

Byers v. Dallas Morning News, Inc.,

(5th Cir.

2000). By contrast, the nonmoving party must come forward with

“specific facts showing that there is a genuine issue for trial.”

FED. R. CIV. P. 56(e). According to the Supreme Court, “there is

no issue for trial unless there is sufficient evidence favoring

the nonmoving party for a jury to return a verdict for that

party.” Anderson,

. When a district court

reviews the support for a nonmovant’s case, the “evidence of the

14 non-movant is to be believed, and all justifiable inferences are

to be drawn in [its] favor.”

.

1. Shields’s Federal Law Claims

In his second amended complaint, Shields alleges six

constitutional violations that he claims are actionable under

: (1) unreasonable arrest; (2) unreasonable

detention; (3) malicious prosecution; (4) unreasonable

investigation; (5) failure to supervise (against Kerr County)

resulting in an inadequate investigation; and (6) failure to

supervise and train (against Kerr County) with respect to the use

of photographic lineups. The court examines each of these claims

in turn.

With respect to Shields’s unreasonable arrest, unreasonable

detention, and malicious prosecution claims, Shields principally

contends that the district court erred in determining that he had

not raised a genuine issue of material fact regarding whether

there existed probable cause to charge and arrest him. To the

extent that Shields complains of the fact that charges were filed

against him, he has not stated a cognizable federal claim after

this court’s en banc decision in Castellano v. Fragozo,

(5th Cir. 2003) (en banc) (“[C]ausing charges to be

filed without probable cause will not without more violate the

constitution. So defined, the assertion of malicious prosecution

states no constitutional claim.”).

Even so, Castellano does permit a plaintiff to assert a

15 Fourth Amendment claim based on an arrest made without probable

cause. Id.; see also Sorenson v. Ferrie,

(5th

Cir. 1998) (“Whether an arrest is illegal . . . hinges on the

absence of probable cause.”). This circuit has held, however,

that once “facts supporting an arrest are placed before an

independent intermediary such as a . . . grand jury, the

intermediary’s decision breaks the chain of causation” for these

constitutional violations. Taylor v. Gregg,

(5th Cir. 1994) (citing Wheeler v. Cosden Oil & Chem. Co.,

(5th Cir. 1984)). Nevertheless, these claims may

be maintained if the plaintiff affirmatively shows that “the

deliberations of that intermediary were in some way tainted by

the actions of the defendants.” Taylor,

(quoting

Hand v. Gary,

(5th Cir. 1988)). Shields

claims that he can maintain his unreasonable arrest and detention

claims in light of the indictment because exculpatory information

was withheld from the grand jury and, accordingly, its

deliberations were tainted. However, as previously discussed, he

has put forward no evidence whatsoever that exculpatory

information was withheld from the grand jury, whereas both

Coleman and Twiss have testified under oath that they provided

exculpatory information to the grand jury. Accordingly,

Shields’s conclusory allegations that information was withheld

are insufficient to create a fact issue warranting the denial of

summary judgment, and Twiss cannot be held liable for

16 unreasonable arrest or unreasonable detention based on the

absence of probable cause. See, e.g., Douglass v. United Servs.

Auto. Ass’n,

(5th Cir. 1996) (explaining that

“conclusory allegations, speculation, and unsubstantiated

assertions are inadequate to satisfy the nonmovant’s burden” at

summary judgment).

Regarding Shields’s “unreasonable investigation” claim,

Shields has pointed to no legal basis for a § 1983 action of this

sort, and the court knows of none. Hence, this claim also fails.

Finally, Shields asserts two failure-to-supervise claims.

First, he claims that Kerr County overworked Twiss and made it

impossible for her to investigate her cases properly, resulting

in the Fourth Amendment violations that Shields alleges. Second,

Shields claims that Kerr County did not properly train Twiss in

the use of photographic lineups and, as a result, Twiss used an

unconstitutionally suggestive lineup during her investigation of

him.5 With respect to Shields’s first failure-to-supervise claim

5 In his second amended complaint, Shields argues that Kerr County should be held liable for its failure to train Twiss in the use of photographic lineups. In his response to the defendants’ motion for summary judgment and in his appellate brief, he appears to expand the scope of this claim by attempting to hold Twiss personally liable for this violation as well. As the district court correctly noted, however, Shields has pointed to no authority suggesting that the use of an improper lineup constitutes a distinct constitutional violation giving rise to money damages under § 1983. The one case that Shields does cite, United States v. Merkt,

(5th Cir. 1986), only pertains to the admissibility of pretrial photographic identifications--it does not confer liability on individual defendants under § 1983. Hence, Shields’s attempt to hold Twiss

17 (i.e., that Kerr County overworked Twiss and did not supervise

her workload), this circuit has held that municipal liability

“under section 1983 attaches where a deprivation of a right

protected by the Constitution or by federal law is caused by an

official policy.” Burge v. St. Tammany Parish,

(5th Cir. 2003). Here, however, Shields has not presented a

genuine issue of fact concerning whether Deputy Twiss deprived

him of any constitutional or federal rights. Thus, Kerr County

cannot be held liable for overworking or not properly supervising

Twiss. As for Shields’s second failure-to-supervise claim (i.e.,

that Kerr County did not adequately train Twiss in the use of

photographic lineups), Shields can only prevail by showing that

an official policy or custom “was a cause in fact of the

deprivation of rights inflicted.” Spiller v. City of Tex. City,

Police Dep’t,

(5th Cir. 1997) (quoting Leffall

v. Dallas Indep. Sch. Dist.,

(5th Cir. 1994)).

To prevail, Shields must also point to evidence showing that Kerr

County adopted the policy or custom in “deliberate indifference

to the constitutional rights of its inhabitants.” City of Canton

v. Harris,

(1989). Shields has put forward no

evidence that Kerr County had a policy or training program that

encouraged the use of unconstitutional photographic lineups.

Likewise, he has not pointed to any evidence that Kerr County was

personally liable for the photographic lineup fails.

18 deliberately indifferent to the constitutional rights of its

residents. Accordingly, this failure-to-supervise claim, like

Shields’s other federal claims, fails.

We recognize that this is an unfortunate case, but Shields

has not established a constitutional violation.

2. Shields’s State Law Claims

While Shields raises a number of state-law claims in his

second amended complaint, on appeal he only briefs his allegation

of malicious prosecution against Deputy Twiss. Accordingly,

since Shields failed to brief his other state-law claims, the

court considers them waived. See FED. R. APP. P. 28(a)(9)(A); L &

A Contracting Co.,

, 113 (5th Cir. 1994). Only

Shields’s malicious-prosecution claim under Texas law remains.

Under Texas law, a plaintiff alleging malicious prosecution

must establish: (1) the commencement of a criminal prosecution

against him; (2) that the defendant caused the prosecution to be

commenced; (3) termination of the prosecution in his favor; (4)

his innocence; (5) the absence of probable cause for the

proceeding; (6) malice in filing the charge; and (7) damages.

Richey v. Brookshire Grocery Co.,

(Tex.

1997).

When the district court ruled on Shields’s state-law

malicious-prosecution claim under Texas law, it found that: (1)

his claim failed because Shields had not created a genuine fact

issue regarding the probable-cause and malice elements; and (2)

19 even if Shields could have proven the probable-cause and malice

elements, his malicious-prosecution claim still failed because

Deputy Twiss was entitled to official immunity. In his appellate

brief, Shields briefly discusses the district court’s holding

regarding probable cause. He does not, however, ever mention--

much less contest--the district court’s alternative holding on

official immunity. Accordingly, the district court’s

unchallenged holding on official immunity stands, Shields’s

malicious-prosecution claim under Texas law fails, and the court

need not address his argument regarding the probable-cause

element of this claim.

III. CONCLUSION

For the foregoing reasons, we AFFIRM the judgment of the

district court.

20