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HULSEY v. STATE OF TEX
Hulsey v. State of Texas, No. 90-8568 (5th Cir. Apr. 19, 1991) — Opinion Summary
Factual and Procedural Background
James Skip Hulsey, a pro se plaintiff then incarcerated after pleading guilty to sexual assault, sued the State of Texas, the City of Odessa, and Odessa police officer Ted Hughes under civil rights theories. Hulsey was arrested on a parole warrant alleging rape, held in Ector County jail, later charged in state court, and two months thereafter taken to a hospital pursuant to a state evidentiary search warrant for collection of body samples. Hulsey alleged unlawful six-day detention before a complaint, taking body samples without showing a warrant, coercion to sign a hospital consent form, denial of opportunity to consult counsel before medical tests, and denial of a speedy trial. The district court quashed service on the State (later directing service on the Secretary of State), dismissed Hulsey's claims against the State with prejudice for want of prosecution after he failed to perfect service, and granted summary judgment for the City of Odessa and Officer Hughes. Hulsey appealed; he also moved for appointment of counsel on appeal.
Legal Issues Presented
- Whether the district court abused its discretion in dismissing Hulsey's claims against the State of Texas for want of prosecution.
- Whether Hulsey was unlawfully detained for six days before any complaint was filed.
- Whether the search warrant authorizing collection of body samples was invalid (raised first on appeal).
- Whether failure to show Hulsey a copy of the search warrant before taking samples invalidated the search.
- Whether Officer Hughes coerced Hulsey into signing a hospital consent form and whether such coercion (or refusal to allow counsel before signing) violated constitutional rights or otherwise invalidated the search.
- Whether Hulsey was denied his constitutional right to a speedy trial.
- Whether Hulsey was denied his right to an examining trial in state court (raised first on appeal).
- Whether counsel should be appointed for Hulsey on appeal.
Arguments of the Parties
Appellant's (Hulsey) Allegations and Positions
- He was unlawfully detained for six days before filing of a formal complaint.
- Body samples were taken without showing him a search warrant.
- He was forced to sign a hospital consent/authorization form under threat of additional charges.
- He was not allowed to call his attorney before submitting to medical tests.
- He was denied a speedy trial and, asserted on appeal, an examining trial in state court.
- He requests appointment of counsel on appeal.
Appellees' (State/City/Officer) Positions
- The State moved to quash service as improper; the district court directed proper service on the Secretary of State and later dismissed the State for failure to perfect service.
- The City and Officer moved for summary judgment supported by documentary evidence, including a request for admissions and Hulsey's responses.
- Defendants' evidence established Hulsey's initial arrest was for a parole violation and that the search was conducted pursuant to a state evidentiary search warrant.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Fournier v. Textron, Inc., 776 F.2d 532, 534 (5th Cir. 1985) | Standard of review: abuse of discretion for dismissal for want of prosecution. | Applied to review district court's dismissal of Hulsey's claims against the State. |
| Porter v. Beaumont Enterprise Journal, 743 F.2d 269, 271 (5th Cir. 1984) | Standard of review: abuse of discretion for dismissal for want of prosecution. | Applied along with Fournier to affirm dismissal for want of prosecution. |
| Waltman v. International Paper Co., 875 F.2d 468, 474 (5th Cir. 1989) | Standard of review for summary judgment appeals. | Invoked to frame appellate review of the district court's grant of summary judgment. |
| Moore v. Mississippi Valley State Univ., 871 F.2d 545, 548 (5th Cir. 1989) | Standard of review for summary judgment appeals. | Invoked with Waltman to apply same standard as district court. |
| Russell v. Harrison, 736 F.2d 283, 287 (5th Cir. 1984) | An opposing party cannot create a genuine issue of material fact by resting on pleadings alone. | Used to reject Hulsey's unsupported pleadings as insufficient to defeat summary judgment. |
| Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, 106 S.Ct. 2505, 2510-11, 91 L.Ed.2d 202 (1986) | Summary judgment proper only if no genuine issue of material fact exists. | Applied as part of the summary judgment standard requiring evidentiary support to show genuine issues. |
| Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548, 2552-53, 91 L.Ed.2d 265 (1986) | Summary judgment procedure and the nonmoving party's burden to produce evidence. | Used to support the requirement that Hulsey produce evidence to raise a genuine issue. |
| Jackson v. Procunier, 789 F.2d 307, 310 (5th Cir. 1986) | Caution in granting summary judgment; careful in prisoner pro se cases. | Noted court must be cautious but concluded dismissal/sj appropriate here. |
| Murrell v. Bennett, 615 F.2d 306, 311 (5th Cir. 1980) | Court should guard against premature truncation of pro se prisoner suits. | Considered in evaluating whether summary judgment was appropriate despite pro se status. |
| Brinkmann v. Dallas County Deputy Sheriff Abner, 813 F.2d 744, 750 (5th Cir. 1987) | Consideration of pro se litigant status in procedural matters. | Used to explain district court's leniency toward Hulsey before dismissing for failure to comply. |
| Birl v. Estelle, 660 F.2d 592, 593 (5th Cir. 1981) | Pro se status does not exempt from compliance with rules; right of self-representation not absolute. | Supported the conclusion that Hulsey must comply with court orders to effect service. |
| National Hockey League v. Metropolitan Hockey Club, Inc., 427 U.S. 639, 640-43, 96 S.Ct. 2778, 2779-81, 49 L.Ed.2d 747 (1976) | Authority for courts to enforce compliance with procedural orders. | Referenced in support of enforcing the court's service order against Hulsey. |
| Kersh v. Derozier, 851 F.2d 1509, 1512 (5th Cir. 1988) | Pro se litigants remain subject to procedural rules. | Cited to reaffirm that Hulsey's pro se status did not excuse failure to follow instructions. |
| Dukes v. South Carolina Ins. Co., 770 F.2d 545, 548-49 (5th Cir. 1985) | Under Rule 36(b) admissions are conclusive unless withdrawn or amended by court order. | Applied to treat Hulsey's failure to respond to request for admissions as conclusive admission of parole-based arrest. |
| Hobbs v. Blackburn, 752 F.2d 1079, 1083 (5th Cir.), cert. denied, 474 U.S. 838, 106 S.Ct. 117, 88 L.Ed.2d 95 (1985) | Issues not raised before the district court need not be considered on appeal. | Relied upon to decline consideration of Hulsey's search-warrant-validity and examining-trial claims raised first on appeal. |
| United States v. Marx, 635 F.2d 436, 441 (5th Cir. Unit B 1981) | Failure to deliver a copy of the search warrant to the party searched does not invalidate the search absent a showing of prejudice. | Applied to reject Hulsey's claim that not seeing the warrant invalidated the search. |
| Smith v. State, 491 S.W.2d 924, 926 (Tex.Crim.App.), cert. denied, 414 U.S. 1025, 94 S.Ct. 451, 38 L.Ed.2d 317 (1973) | Failure to comply with technical requirements for issuing a search warrant does not necessarily invalidate the search. | Used with Marx to conclude Hulsey's allegation he did not see the warrant did not create a genuine issue of material fact. |
| Schmerber v. California, 384 U.S. 757, 770-71, 86 S.Ct. 1826, 1835-36, 16 L.Ed.2d 908 (1966) | Search pursuant to valid warrant can render consent or administrative forms irrelevant to legality of search. | Applied to hold that coerced signing of hospital consent form did not invalidate a search conducted under a valid warrant. |
| Johnson v. Morel, 876 F.2d 477, 479-80 (5th Cir. 1989) | Excessive force claim requires showing significant injury resulting from objectively unreasonable force. | Applied to reject Hulsey's coercion/threat claim for lack of evidence of significant injury or excessive force. |
| Morrison v. City of Baton Rouge, 761 F.2d 242, 244 (5th Cir. 1985) | Issues stated but not briefed need not be considered on appeal. | Applied to decline to consider Hulsey's speedy-trial claim which he failed to brief. |
| City of Waco v. Bridges, 710 F.2d 220, 227 (5th Cir. 1983), cert. denied, 465 U.S. 1066, 104 S.Ct. 1414, 79 L.Ed.2d 741 (1984) | Issues not raised below are not reviewable on appeal. | Applied with Hobbs and In re Novack to refuse consideration of examining-trial claim raised first on appeal. |
| In re Novack, 639 F.2d 1274, 1276 (5th Cir. 1981) | Issues not raised in the district court will not be addressed on appeal. | Cited to support denial of review of new appellate issues. |
| Freeze v. Griffith, 849 F.2d 172, 175 (5th Cir. 1988) | No absolute right to appointment of counsel in civil rights cases; appointment only in exceptional circumstances. | Applied to deny Hulsey's motion for appointment of counsel on appeal. |
| Ulmer v. Chancellor, 691 F.2d 209, 212-213 (5th Cir. 1982) | Appointment of counsel unnecessary unless exceptional circumstances exist; factors include complexity and litigant's ability. | Considered in concluding Hulsey could adequately present his case and counsel appointment was unwarranted. |
Court's Reasoning and Analysis
The court first stated standards of review: dismissal for want of prosecution reviewed for abuse of discretion; summary judgment reviewed under the Rule 56 standard and related Supreme Court and Fifth Circuit precedents. On dismissal of the State, the court found the district court had given Hulsey clear instructions to serve the Secretary of State and provided clerk's instructions; Hulsey failed to perfect service and disregarded the order despite pro se leniency; therefore dismissal with prejudice for want of prosecution was not an abuse of discretion.
On the unlawful detention claim, defendants submitted a magistrate's advice of rights form and Hulsey's responses to requests for admissions; Hulsey failed to contest the evidence and thereby admitted he was arrested for a parole violation under Fed.R.Civ.P.36(a). Because he did not move to withdraw that admission under Rule 36(b), the admission was conclusive. Given the uncontroverted evidence of lawful parole-based detention, no genuine issue remained and defendants were entitled to summary judgment on that claim.
Hulsey's contention that the search warrant was invalid was raised for the first time on appeal; invoking Hobbs and related authority, the court declined to consider novel appellate issues not presented to the district court. As to Hulsey's allegation that he was not shown the warrant before samples were taken, the court assumed Hulsey's version but relied on Marx and Smith to hold that failure to deliver or see a copy of the warrant does not invalidate the search absent a showing of prejudice; Hulsey produced no evidence of prejudice, so summary judgment was proper.
Regarding alleged coercion to sign the hospital consent form and denial of counsel before signing, the court noted a valid search warrant had been issued and that the administrative hospital consent was irrelevant to the legal validity of the search (citing Schmerber). The coercion allegation also did not implicate excessive force principles because Hulsey produced no evidence of significant injury as required by Johnson v. Morel. Thus these claims failed as a matter of law.
Hulsey's speedy-trial claim was mentioned but not briefed; under Morrison the court declined to consider it. His examining-trial claim was first raised on appeal and was forfeited for failure to raise it below. Finally, the court considered appointment of counsel factors from Ulmer and related cases, found the issues not complex and Hulsey able to present his case, and denied appointment of counsel.
Holding and Implications
Holding: The judgment of the district court is AFFIRMED. The district court's dismissal with prejudice of Hulsey's claims against the State of Texas for want of prosecution is affirmed, and the grant of summary judgment for the City of Odessa and Officer Hughes is affirmed. The motion for appointment of counsel on appeal is DENIED.
Implications: The direct effect is that Hulsey's claims against the State were dismissed with prejudice and his remaining claims against the City and officer were resolved by summary judgment for the defendants. The court did not create or announce a new legal precedent beyond application of existing authority and procedural rules to these facts.
DUHE, Circuit Judge.
James Skip Hulsey filed a civil rights action in district court against the State of Texas, the City of Odessa, and Ted Hughes, an Odessa police officer. The court dismissed with prejudice Hulsey's claims against the State of Texas for want of prosecution and granted summary judgment in favor of the City of Odessa and Officer Hughes. Hulsey now appeals the court's judgment. We affirm.
In April 1989 Hulsey was on parole from prison after a previous state criminal conviction in Texas. Pursuant to an arrest warrant issued by the Texas Department of Pardons and Paroles, Officer Hughes arrested him in Odessa, Texas for a parole violation based on an allegation that he had committed rape. The next day, Hulsey was transferred to a jail in Ector County, Texas to await the disposition of his parole revocation proceedings.
While Hulsey waited in the Ector County jail, the Odessa Police Department conducted an investigation of the alleged rape. After Hulsey had been in the Ector County jail for five days, formal charges were brought against him in state court for sexual assault. The court appointed an attorney to represent Hulsey.
About two months later, the Odessa Police Department obtained an evidentiary search warrant from a state court judge. This warrant authorized police officers to transport Hulsey to a hospital for the purpose of taking samples of his blood, saliva, head hair, and pubic hair to use in investigating the sexual assault charges pending against him. Pursuant to this warrant, Officer Hughes took Hulsey to a hospital in Odessa.
Before taking the body samples, hospital employees requested that Hulsey sign a medical authorization and release. According to Hulsey, Officer Hughes threatened him with additional criminal charges if he refused to sign this form. Hulsey reluctantly signed the form and allowed hospital employees to take the body samples. Then Officer Hughes transported him back to the Ector County jail.
About eight months later, after consulting with his attorney, Hulsey pleaded guilty to the sexual assault charge. The trial judge sentenced him to a term of six years in prison. While incarcerated in the state prison in Huntsville, Texas, Hulsey filed this pro se suit against the State of Texas, the City of Odessa, and Officer Hughes.
Hulsey alleged that the defendants (1) unlawfully detained him for six days before filing a formal complaint, (2) took body samples from him without showing him a search warrant, (3) forced him to sign a hospital consent form authorizing release of body samples to the police, (4) refused to allow him to call his attorney before submitting to medical tests, and (5) denied him the right to a speedy trial.
The State of Texas moved to quash the summons on the grounds of improper service, and the court granted the motion. In the same order, however, the court directed Hulsey to obtain proper service on the State of Texas by serving the Secretary of State. In addition, the Clerk of Court sent Hulsey detailed instructions on obtaining proper service. When Hulsey failed to perfect service even after receiving these instructions, Hulsey's claims against the State of Texas were dismissed with prejudice for want of prosecution.
The City of Odessa and Officer Hughes, the two remaining defendants, filed a motion for summary judgment. They supported this motion with documentary evidence, including a request for admissions propounded to Hulsey and his response to that request. Hulsey's opposition to the motion consisted of little more than a request that the court deny the defendants' motion.
The court granted summary judgment for the City of Odessa and Officer Hughes. Hulsey now appeals, raising before this Court the same issues that he raised before the trial court. In addition, for the first time on appeal, he argues that the defendants (1) used an invalid search warrant to obtain body samples and (2) denied his right to an examining trial in state court. Finally, Hulsey files a motion for the appointment of counsel on appeal.
Standards of Review
We review a district court's dismissal for want of prosecution only for an abuse of discretion. See Fournier v. Textron, Inc., 776 F.2d 532, 534 (5th Cir. 1985); Porter v. Beaumont Enterprise Journal, 743 F.2d 269, 271 (5th Cir. 1984). In reviewing a grant of summary judgment, we apply the same standard of review applied by the district court. See Waltman v. International Paper Co., 875 F.2d 468, 474 (5th Cir. 1989); Moore v. Mississippi Valley State Univ., 871 F.2d 545, 548 (5th Cir. 1989).
Summary judgment is appropriate only if, when viewed in the light most favorable to the nonmoving party, the record discloses "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." Fed.R.Civ.P. 56(c).
Although we must draw all inferences in favor of the party opposing the motion, an opposing party cannot establish a genuine issue of material fact by resting on the mere allegations of the pleadings. Russell v. Harrison, 736 F.2d 283, 287 (5th Cir. 1984). A properly supported motion for summary judgment should be granted unless the opposing party produces sufficient evidence to demonstrate that a genuine factual issue exists. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, 106 S.Ct. 2505, 2510-11, 91 L.Ed.2d 202 (1986); Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548, 2552-53, 91 L.Ed.2d 265 (1986).
Because summary judgment is a final adjudication on the merits, courts must employ this device cautiously. Jackson v. Procunier, 789 F.2d 307, 310 (5th Cir. 1986). In prisoner pro se cases, courts must be especially careful to "guard against premature truncation of legitimate lawsuits merely because of unskilled presentations." Murrell v. Bennett, 615 F.2d 306, 311 (5th Cir. 1980).
Dismissal of the State
The district court issued an order that directed Hulsey to serve the State of Texas by serving the Secretary of State. Moreover, the Clerk of Court sent Hulsey detailed instructions on this process. Instead of following the court's clear instructions, Hulsey filed a motion to dismiss the court's order, arguing that he had exercised good faith in filing his suit and that someone else was responsible for the error in service.
The district court was appropriately lenient with Hulsey because of his status as a pro se plaintiff. See Brinkmann v. Dallas County Deputy Sheriff Abner, 813 F.2d 744, 750 (5th Cir. 1987); Birl v. Estelle, 660 F.2d 592, 593 (5th Cir. 1981). It not only allowed him a second chance at obtaining service but also instructed him on the proper procedure. In response, Hulsey disregarded a clear and reasonable court order. See National Hockey League v. Metropolitan Hockey Club, Inc., 427 U.S. 639, 640-43, 96 S.Ct. 2778, 2779-81, 49 L.Ed.2d 747 (1976).
"The right of self-representation does not exempt a party from compliance with relevant rules of procedural and substantive law." Birl, 660 F.2d at 593; see Kersh v. Derozier, 851 F.2d 1509, 1512 (5th Cir. 1988). We conclude that the district court did not abuse its discretion in dismissing with prejudice Hulsey's claims against the State of Texas.
Claim of Unlawful Detention
Hulsey alleges that after his arrest, he remained in jail for six days before any complaint was filed against him. The record clearly refutes this argument. In support of the motion for summary judgment, the defendants submitted a copy of the state magistrate's advice of rights form signed by Hulsey at the time of his arraignment. This document establishes that Hulsey was arrested for a violation of the conditions of his parole. In opposing the motion for summary judgment, Hulsey failed to address this issue.
Furthermore, the summary judgment evidence reveals that Hulsey formally admitted that he was arrested for a parole violation. In response to the defendants' request for admissions, Hulsey failed to deny the assertion that he was initially arrested for a parole violation. Under Federal Rule of Civil Procedure 36(a), a matter in a request for admissions is admitted unless the party to whom the request is directed answers or objects to the matter within 30 days. Fed.R.Civ.P. 36(a). Hulsey thus admitted that a parole violation was the basis of his initial arrest.
Under Rule 36(b), "Any matter admitted under this rule is conclusively established unless the court on motion permits withdrawal or amendment of the admission." Fed.R.Civ.P. 36(b); see Dukes v. South Carolina Ins. Co., 770 F.2d 545, 548-49 (5th Cir. 1985). Hulsey failed to make a motion for withdrawal or amendment of his admission. The defendants therefore conclusively established his detention after an arrest for a parole violation and attached conclusive proof to their motion for summary judgment.
Because of the overwhelming evidence of lawful detention for a parole violation and because of Hulsey's failure to respond to this evidence, no genuine issue of material fact remains on the issue of Hulsey's detention. The defendants are therefore entitled to summary judgment on this issue.
Validity of the Search Warrant
Hulsey argues for the first time on appeal that the search warrant authorizing the police to obtain body samples was invalid. Because Hulsey failed to raise this issue before the district court, we need not consider it on appeal. See Hobbs v. Blackburn, 752 F.2d 1079, 1083 (5th Cir.), cert. denied, 474 U.S. 838, 106 S.Ct. 117, 88 L.Ed.2d 95 (1985).
Failure to Serve the Search Warrant
Hulsey alleges that Officer Hughes failed to show him the search warrant before hospital employees took body samples. Assuming, as we must on consideration of summary judgment, that Hulsey's version of the story is true, the fact that Hulsey did not see the warrant before the search does not invalidate the search under either federal or state law. See, e.g., United States v. Marx, 635 F.2d 436, 441 (5th Cir. Unit B 1981) (holding that the failure to deliver a copy of the search warrant to the party searched does not invalidate the search in the absence of a showing of prejudice); Smith v. State, 491 S.W.2d 924, 926 (Tex.Crim.App.), cert. denied, 414 U.S. 1025, 94 S.Ct. 451, 38 L.Ed.2d 317 (1973) (holding that failure to comply with the technical requirements for issuing a search warrant does not invalidate the search).
By alleging merely that he did not see the search warrant before the search, Hulsey has failed to produce any evidence suggesting a genuine issue of material fact. The district court thus correctly granted summary judgment for the defendants on this issue.
Use of Coercion to Obtain Signed Consent Form
Hulsey contends that Officer Hughes improperly coerced him to sign the hospital consent form by threatening him with additional criminal charges. Assuming that this allegation is true, we find that it provides no basis for relief. A valid search warrant had already been issued; the search, therefore, could have been legally conducted without a hospital consent form. See Schmerber v. California, 384 U.S. 757, 770-71, 86 S.Ct. 1826, 1835-36, 16 L.Ed.2d 908 (1966). Obtaining a signed consent form — an administrative procedure of the hospital — is irrelevant to the validity of the search.
Furthermore, the allegation that Officer Hughes threatened him with additional criminal charges fails to suggest a violation of any other constitutional or statutory right. A complaint of excessive force by a police officer requires a showing that the plaintiff sustained a significant injury resulting from the use of excessive and improper force that was objectively unreasonable. See Johnson v. Morel, 876 F.2d 477, 479-80 (5th Cir. 1989). The summary judgment evidence reveals that Hulsey failed to submit any evidence of significant injury or excessive force. The district court therefore appropriately granted summary judgment for the defendants on this issue.
Right to an Attorney in Signing the Consent Form
Hulsey argues that the defendants violated his constitutional rights by refusing to allow him to call his attorney before he signed the hospital consent form. Hulsey has no constitutionally protected right to avoid signing a hospital consent form. As we explained in the previous section, the search would have been legal even without the signed form because it was conducted pursuant to a valid search warrant.
Because the consent form was unrelated to the constitutional validity of the search, Hulsey had no constitutionally protected right to consult with an attorney before signing it. Since his claim on this issue is without merit, the district court correctly granted summary judgment for the defendants.
Right to a Speedy Trial
Hulsey claims in his brief that his constitutional right to a speedy trial has been denied. Hulsey, however, has failed to discuss this issue in his brief. Issues stated but not briefed need not be considered by this Court on appeal. Morrison v. City of Baton Rouge, 761 F.2d 242, 244 (5th Cir. 1985).
Right to an Examining Trial
For the first time on appeal, Hulsey argues that he has been denied his right to an examining trial in state court. We will not consider on appeal issues not raised in the district court. See Hobbs, 752 F.2d at 1083, City of Waco v. Bridges, 710 F.2d 220, 227 (5th Cir. 1983), cert. denied, 465 U.S. 1066, 104 S.Ct. 1414, 79 L.Ed.2d 741 (1984); In re Novack, 639 F.2d 1274, 1276 (5th Cir. 1981).
Motion for Counsel on Appeal
Hulsey has filed a motion in this Court for appointment of counsel on appeal. A civil rights complainant has no absolute right to the appointment of counsel. Freeze v. Griffith, 849 F.2d 172, 175 (5th Cir. 1988); Ulmer v. Chancellor, 691 F.2d 209, 212 (5th Cir. 1982). In fact, the appointment of counsel is unnecessary unless a case presents exceptional circumstances. Ulmer, 691 F.2d at 212-213.
Among the factors we must consider in deciding whether to appoint counsel are the complexity of the issues and the ability of Hulsey to represent himself adequately. See id. at 213. The facts and issues in this case are neither novel nor complicated. Moreover, Hulsey has demonstrated in his brief and pleadings that he is capable of adequately presenting his case. We therefore deny his motion for appointment of counsel.
Conclusion
After carefully considering the issues raised by Hulsey on appeal, we find no error in the district court's dismissal of the State of Texas and grant of summary judgment for the other defendants. Viewing the record in the light most favorable to Hulsey, we find that he has failed to raise any genuine issue of material fact and that the defendants are entitled to a judgment as a matter of law.
The judgment of the district court is AFFIRMED.
The motion for appointment of counsel on appeal is DENIED.
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