Fitch v. Morrow

*Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not be published
and is not precedent except under the limited circumstances set forth in 5th Cir. R. 47.5.4.
United States Court of Appeals
Fifth Circuit
F I L E D
August 30, 2006
Charles R. Fulbruge III
Clerk
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 05-20667
Summary Calendar
KELLI BARRETT FITCH; ET AL.,
Plaintiffs,
KELLI BARRETT FITCH,
Plaintiff – Appellant.
versus
NORMAN D. MORROW,
Defendant – Appellee.
Appeal from the United States District Court
for the Southern District of Texas
(4:03-CV-1686)
Before GARZA, STEWART and DENNIS, Circuit Judges.
CARL E. STEWART, Circuit Judge:*
Plaintiff-Appellant KelliBarrett Fitch (“Fitch”) appeals the district court’s grant of Defendant-
Appellee Normand D. Morrow’s (“Morrow”) motion for summary judgment. Additionally, she
requests that this court overrule its well-established “break in the causal chain” doctrine and

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1The underlying warrant arose from activities surrounding the rental of a self-storage facility.
Jesse Salazar rented a self-service storage unit in Houston, Texas, and listed “Kelly Barrett” as his
alternate contact and co-renter on the face of the storage facility contract. Thereafter, the manager
of the facility began noticing that Salazar and Barrett were acting suspiciously. After several tenants’
items were stolen from numerous storage units, the manager contacted the Harris County Sheriff’s
Department for assistance. Based on interviews with the storage facility manager and a renter whose
storage unit had been broken into and his items taken, Morrow searched via a Harris County
computer search engine for matches in the Houston area for persons of the same name that matched
Salazar and Barrett’s physical descriptions, addresses, age, etc. Morrow’s research led him to believe
that Kelly Barrett was actually Kelli Renee Barrett (Fitch), even though the names were spelled
differently. Eventually, Morrow signed a probable cause affidavit for her arrest and delivered it to
the Harris County District Attorney’s office for further processing. Fitch was arrested on May 1,
2001; however, it was later determined that she was not the same person listed on the rental
agreement and, thus, she was released from jail. All of the records relating to Fitch’s arrest and
prosecution for the theft offenses were expunged and destroyed. Morrow has testified that he did
not prepare the arrest warrant, meet with the magistrate judge that eventually signed the arrest
warrant for Fitch, or personally arrest Fitch. Morrow also testified that he had no reason to believe
that Kelly Barrett and Kelli Renee Barrett (Fitch) were not the same person.
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ultimately determine that Morrow was not entitled to qualified immunity. We decline to do so;
therefore, we affirm the judgment of the district court.
FACTUAL AND PROCEDURAL BACKGROUND
Fitch and her husband initially brought suit under 42 U.S.C. § 1983 in state district court in
Harris County, Texas, on April 19, 2002, claiming that an arrest warrant applied for by Morrow and
issued for Fitch failed to particularly describe the person for whom probable cause existed, as required
by the Particularity Clause of the Fourth Amendment to the United States Constitution. U.S. Const.
amend. IV. They alleged negligence and slander claims arising out of her arrest based on mistaken
identity. The suit was originally filed against PS Texas Holdings, LTD (d/b/a Public Storage), but
Morrow was added in Fitch’s second amended petition on January 16, 2003.1
The arrest warrant in question identified the subject as “Kelli Renee Barrett” (Fitch) of Katy,
Texas; however, the warrant should have been issued for another party, “Kelly Barrett.” Therefore,

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Fitch states that Morrow’s arbitrary selection of her as the intended target of the arrest warrant was
objectively unreasonable in light of the information readily available to him.
Morrow removed the case to federal court on May 19, 2003, and subsequently filed a motion
to dismiss. The district court granted the motion to dismiss reasoning that, assuming arguendo that
Fitch’s Fourth Amendment rights had been violated by an invalid arrest warrant for which Morrow
had applied, Morrow was entitled to qualified immunity under current Fifth Circuit case law.
Specifically, the district court stated that, “Plaintiffs have not alleged that Morrow intentionally
withheld or misrepresented any information in his sworn application for warrant . . . . [they] clearly
alleged only that Morrow was negligent . . . . [t]herefore, Plaintiff’s complaint shows on its face that
it is barred.”
On February 20, 2004, Fitch moved for reconsideration of the district court’s order,
requesting that it review its holding that the issuance of a warrant by a neutral and detached
magistrate breaks the causal chain between an officer’s application and a suspect’s arrest. On the
same day, Fitch also filed a third amended complaint, omitting her husband as a party, relinquishing
her state law claims, and alleging “constitutional” claims sounding in negligence. The district court
responded, denying Fitch’s request to hold the “break in the causal chain” theory unlawful; however,
it found that the third amended complaint successfully stated a cause of action.
On December 7, 2004, Morrow filed a motion for summary judgment, stating that his
subjective good faith, both independently and in conjunction with the magistrate judge’s decision to
issue the warrant for Fitch’s arrest, broke the casual chain and protected him from liability under §
1983. The district court issued its final judgment on August 1, 2005, finding that no genuine issue of
material fact existed regarding the information Morrow provided to the magistrate judge who issued

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the warrant for Fitch’s arrest. It also held that Fitch did not provide sufficient evidence to indicate
that Morrow tainted the magistrate judge’s decision to sign the warrant. From the district court’s
judgment, Fitch appeals.
DISCUSSION
A. Standard of Review
This court reviews a grant of summary judgment de novo, viewing the facts in the light most
favorable to the non-movant. Freeman v. County of Bexar, 210 F.3d 550, 553 (5th Cir. 2000).
Summary judgment is appropriate when the pleadings, depositions, answers to interrogatories,
admissions and/or affidavits show that there is no genuine issue of material fact. Fed. R. Civ. P.
56(c). A genuine issue of material fact exists “if the evidence is such that a reasonable jury could
return a verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986).
In the absence of a genuine issue of material fact, the moving party is entitled to judgment as a matter
of law. Fed. R. Civ. P. 56(c).
B. Qualified Immunity and Clearly Established Law
Fitch argues that this circuit’s “break in the causal chain” doctrine is inconsistent with the
element of causation enacted by Congress under § 1983 and Supreme Court precedent. This court
has held that “an officer who acted with malice in procuring the warrant or the indictment will not
be liable if the facts supporting the warrant or indictment are put before an impartial intermediary
such as a magistrate or a grand jury, for that intermediary’s independent decision breaks the causal
chain and insulates the initiating party.” Hand v. Gary, 838 F.2d 1420, 1427 (5th Cir.1988) (internal
quotations omitted). Accordingly, because Fitch asserts that the doctrine should be invalidated, in

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2We do not consider Fitch’s concise and conclusory statement in her brief regarding summary
judgment because she did not reference specific facts in the summary judgment record which
demonstrate a genuine issue of material fact. She does not discuss the summary judgment issue in
the body of her argument nor does she offer evidence to support a finding that summary judgment
was improperly granted. Because she has failed to adequately raise or brief any claimed genuine issue
of material fact, she has essentially abandoned this issue on appeal and waived this panel’s review
of the district court’s grant of summary judgment in favor of Morrow. See Fed. R. App. P. 28(a)(9).
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turn, she asserts that Morrow is not entitled to be shielded by qualified immunity. She also
conclusively states that summary judgment2 was inappropriate in this case.
Morrow’s conduct, however, is shielded by qualified immunity in light of clearly established
law. Saucier v. Katz, 533 U.S. 194, 210-11 (2001). The clearly established law relied upon in
applying the qualified immunity claim in this case is the “break in the causal chain” doctrine.
Therefore, we must determine whether, “[t]aken in the light most favorable to the party asserting the
injury, . . . the facts alleged show the officer’s conduct violated a constitutional right.” Id. at 201.
Measuring the objective reasonableness of Morrow’s conduct in reference to the law regarding the
“break in the causal chain” doctrine that clearly existed at the time of the conduct in question, we hold
that in this case, Morrow’s conduct was objectively reasonable; his conduct did not violate Fitch’s
constitutional rights.
Under the “break in the causal chain” doctrine, once “facts supporting an arrest are placed
before an independent intermediary such as a magistrate or grand jury, the intermediary’s decision
breaks the chain of causation for false arrest, insulating the initiating party.” Taylor v. Gregg, 36
F.3d 453, 456 (5th Cir. 1996) (internal citations omitted). The causal chain is not broken, however,
“if the plaintiff affirmatively shows that ‘the deliberations of that intermediary were in some way
tainted by the actions of the defendants.’” Shields v. Twiss, 389 F.3d 142, 150 (5th Cir. 2004) (citing
Taylor, 36 F.3d at 456.). The “break in the causal chain” doctrine is “firmly ensconced circuit

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precedent” that existed in 2000 when Morrow signed the probable cause affidavit and delivered the
fruits of his investigation to the Harris County District Attorney’s office. This panel is bound by the
holdings of prior panels of this circuit, including their decisions detailing the impact and law
surrounding this doctrine. Therefore, because we continue to recognize the “break in the causal
chain” doctrine, we affirm the district court’s decision to apply the qualified immunity doctrine.
CONCLUSION
For the foregoing reasons, the judgment of the district court is AFFIRMED.

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