McCall v. Peters, et al

*Pursuan t to 5TH CIR. R.47.5 the Court has determined that this
opinion should not be published and is not precedent except under
United States Court of Appeals
Fifth Circuit
F I L E D
August 29, 2003
Charles R. Fulbruge III
Clerk
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 02-11189
Summary Calendar
DAVID WAYNE MCCALL,
Plaintiff-Appellant,
versus
SCOTT PETERS, Detective, Coppell
Police Department; RANDALL JOHNSON,
Detective, Irving Police Department;
MICHAEL KIERE, Sergeant, Irving
Police Department; MICHAEL D. SCOTT,
Sergeant, Coppell Police Department;
ROY OSBORN, Chief, Coppell Police
Department; CITY OF COPPELL, TEXAS;
CITY OF IRVING, TEXAS; ROBERT FRANCIS,
District Judge; BILL WIRSKYE,
Assistant District Attorney; ANDY
SHEPPARD, Texas Department of Public
Safety,
Defendants-Appellees.
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 3:00-CV-2247
Before GARWOOD, DEMOSS and CLEMENT, Circuit Judges.
PER CURIAM:*

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the limited circumstances set forth in 5TH CIR. R. 47.5.4.
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David Wayne McCall, Texas prisoner # 876980, appeals the
district court’s summary judgment dismissal of defendants Randall
Johnson and the City of Irving in his 42 U.S.C. § 1983 complaint.
He also challenges evidentiary rulings made by the district court.
The claims against Johnson and the City of Irving were dismissed in
a final judgment pursuant to FED. R. CIV. P. 54(b).
We review de novo the district court’s summary judgment
dismissal, based on a finding of qualified immunity, of McCall’s
claims of false arrest and false imprisonment against Johnson. See
Cousin v. Small, 325 F.3d 627, 637 (5th Cir. 2003). Even when
viewed in the light most favorable to McCall, the relevant
competent summary judgment evidence supports the district court’s
conclusion that Johnson had probable cause to seek an arrest
warrant for McCall. Because a reasonably competent law enforcement
officer with Johnson’s knowledge of the facts of this case could
have found probable cause to seek the arrest warrant, Johnson is
entitled to qualified immunity for having done so. See Hart v.
O’Brien, 127 F.3d 424, 444 (5th Cir. 1997); United States v.
Levine, 80 F.3d 129, 132 (5th Cir. 1996).
McCall also challenges the district court’s summary judgment
dismissal of his conspiracy claim against Johnson. McCall makes a
bald assertion that he stated a valid conspiracy claim against
Johnson. McCall’s assertion is based on his contention that there

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was no probable cause for Johnson to seek an arrest warrant or to
arrest him. McCall has failed to support his bald assertion with
any coherent legal or factual argument, and we will not construct
any arguments or theories for him. See Brinkmann v. Dallas County
Deputy Sheriff Abner, 813 F.2d 744, 748 (5th Cir. 1987).
McCall’s only argument with regard to the district court’s
summary judgment dismissal of his claim that the City of Irving
failed to properly hire, train, and supervise its officers is that
his illegal arrest coupled with a 1996 search of his truck show
that the City of Irving has a custom of making illegal searches and
arrests. To the extent that McCall’s claim here is that the
constitutionally deficient custom was one of making illegal
searches and arrests, it is a new claim, and we will not consider
it here. See Leverette v. Louisville Ladder Co., 183 F.3d 339, 342
(5th Cir. 1999). To the extent it is the same claim as that raised
in the district court, it also fails. We have already concluded
that the arrest here was legally supported by probable cause, and
the evidence of the 1996 truck search was not contained in any of
the competent summary judgment evidence presented to the district
court relating to the summary judgment motion filed by Johnson and
the City of Irving.
The district court did not abuse its discretion and was
reasonable in granting a protective order from discovery in favor
of Johnson and several other individual defendants who had asserted

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the defense of qualified immunity. See Moore v. Willis Indep. Sch.
Dist., 223 F.3d 871, 876 (5th Cir. 2000); Heitschmidt v. City of
Houston, 161 F.3d 834, 840 (5th Cir. 1998). With regard to
McCall’s argument that he is only a lay person and did not
understand that the protective order did not encompass the City of
Irving, we conclude that the order was clearly written and would
not be confusing or misleading even to a person untrained in the
law.
So far as relevant to this appeal, the district court did not
abuse its discretion when it denied McCall leave to amend his
complaint to add new parties and new claims. See FED. R. CIV. P.
15(a); Parish v. Frazier, 195 F.3d 761, 764 (5th Cir. 1999);
Martin’s Herend Imports, Inc. v. Diamond & Gem Trading United
States of America Co., 195 F.3d 765, 771 (5th Cir. 1999). McCall
alleges that the magistrate judge was biased against him. His
allegations, however, do not rise to a showing of disqualifying
judicial bias. See United States v. Devine, 934 F.2d 1325, 1348
(5th Cir. 1991). McCall’s assertion that the magistrate judge
erred in considering Johnson’s summary judgment affidavit while
refusing to consider McCall’s fails. Read in context, the
magistrate judge’s statement that it did not “rel[y] upon this
evidence in reaching [its] conclusions” referred only to certain
portions of McCall’s evidence to which the defendants had objected
and which were either irrelevant or not competent summary judgment

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evidence.
AFFIRMED.

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