Hannon v Nevitt July 2009 Motion

8/14/2019 Hannon v Nevitt July 2009 Motion

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PLAINTIFFS RULE 7(a) REPLY TO DEFENDANT DAVID DURICAS ANSWER ANDMOTION Page 1

IN THE UNITED STATES DISTRICT COURTFOR THE NORTHERN DISTRICT OF TEXAS

DALLAS DIVISION

THOMAS HANNON,

Plaintiff,

CIVIL ACTION NO.

vs.

3:09-CV-0066-N

DAVID L. NEVITT, ECFLAWRENCE T. CODDINGTON, JR.,

DAVID DURICA, JERRY DODD,

RANDY SUNDQUIST, and

FRANK W. POBLENZ,

Defendants.

PLAINTIFFS RULE 7(a) REPLY TO

DEFENDANT DAVID DURICAS ANSWER AND MOTION

TO THE HONORABLE UNITED STATES DISTRICT COURT:

COMES NOW, Thomas Hannon, Plaintiff, and pursuant to the Courts Order of June 24,

2009 files this, his Rule 7(a) Reply and Response to the Defendant David Duricas Answer and

Motion. Because this is a conspiracy action, Plaintiff believes no Defendant should enjoy

qualified or official immunity. All Defendants collectively claim they knew of no evidence that

would exculpate the Plaintiff. Plaintiff would submit that is a question of fact to be decided by a

jury.

Notwithstanding the Defendants claims of innocence and qualified immunity, Plaintiff

would show to the Court there was no reasonable basis for the arrest, incarceration, fabrication of

charges, and persistence in prosecution of Plaintiff for the following reasons:

1. The sworn arrest report which resulted in the issuance of the indictment in this

case was purportedly based on information provided by Defendant Jerry Dodd. While the

Case 3:09-cv-00066-N Document 34 Filed 07/06/2009 Page 1 of 14


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Defendants collectively claim that a warrant existed for the arrest of Thomas Hannon, a review

of the Supplement to the Affidavit and Report indicates that after apprehension, Hannons

record was checked, which at that time, revealed the existence of a blue warrant for a failure to

report to the parole office approximately 2 months prior to the termination of parole. Therefore,

the alleged basis for probable cause to arrest is suspect, characterized most charitably. In fact, if

the Defendants were allegedly aware of the warrants existence, then there was no reason to

perform the background check. Also, because the long delay between the issuance and service is

unexplained, such, thereby negates the basis for arrest in the first instance. Therefore, probable

cause was unknown to any of the Defendants at the time, and the blue warrant was an after

thought to justify the unlawful arrest.

2. The sworn arrest report, notwithstanding the most recent claims of Nevitt and

Sundquist, clearly states that Officers Jerry Dodd and David Durica were purportedly at the

location of 8051 LBJ Freeway for the purpose of executing an arrest warrant1 on unknown

individuals. In the Arrest Report and Affidavit, Dodd maintained on August 1, 2007 at about

2:50 p.m., Northeast Development Officers J. Dodd, No. 7577; D. Durica No. 5085; F. Poblenz,

No. 2953; L. Coddington, No. 6830; D. Nevitt, No. 4517; and Sargeant R. Sundquist, No. 6517

were executing a felony warrant for A.P. Hannon at 8051 LBJ Freeway.2

Arresting Officer

Nevitt observed arrested person Hannon exit the rear entrance to the hotel, at which time arrested

person was carrying a black, leather bag. Arrested person Hannon observed arresting officers in

the parking lot at which time he immediately dropped the black bag and took evasive measures

by rapidly walking southbound through the parking lot. Arresting Officers Dodd and Durica

took arrested person Hannon into custody as he began to walk westbound on the service road to

1Duricas recent claim is untrue. If the Defendant was there to arrest Hannon then the report would have stated

such.2

Some Defendants now contend they were conducting undercover surveillance, not serving a warrant.



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LBJ Freeway incident to arrest, arresting Officer Dodd searched the bag in which arrested person

Hannon was carrying and recovered a clear plastic baggie containing a white crystal-like

substance believed to be methamphetamine. The substance was field tested by Sargeant

Sundquist, at which time it tested positive for methamphetamine. The total weight of the

methamphetamine alone was approximately 2-6/10 grams. (Copy attached.)

3. It clearly appears that collectively all of the Defendants participated in the

fabrication of the charges against the Plaintiff. The affidavit states Dodd and Durica took the

Plaintiff into custody; that Dodd and Durica were allegedly seen by the Plaintiff and then the

Plaintiff dropped the bag and ran. Sundquist allegedly field tested the contraband. Nevitt

allegedly observed the Plaintiff exit the hotel carrying the bag. Four of the Defendants obviously

combined to some degree or Dodd is the singular fabricator of the sharp inconsistencies. Who

said what, when and how is yet to be resolved. Either the Defendants combined to fabricate the

charges or they collectively and consciously ignored the truth, arrested the Plaintiff and

continued to fabricate the claims. The result was the same, fabricated felony charges which

resulted in lengthy incarceration.

4. In Paragraph 2.6 of his Answer, Defendant Durica makes the following

affirmative defenses and requests official and qualified immunity.

2.6 Durica pleads that he was a police officer employed at the time of the

incident in question by the City of Dallas as a police officer; is entitled to qualified

immunity from suit and from damages in the present cause; and that on the occasion in

question, he acted without malice, without an intent to deprive Plaintiff of any legally

protected rights, with a reasonable good faith belief that his actions were lawful, proper,

and within and pursuant to the scope of his discretionary authority as a police officer; and



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that he did not violate clearly established law of which a reasonable person would have

known. In support of his assertion to entitlement to both qualified immunity and official

immunity, Durica pleads as follows:

Plaintiffs Response

Plaintiff contends in response to paragraph 2.6 that while Durica was a police officer

employed at the time of the incident in question, he is not entitled to qualify immunity from suit

and from damages because on the occasion in question, he, in concert with the others, acted with

malice and with an intent to deprive Plaintiff of his legally protected right. There was no

reasonable good faith belief that his actions were lawful, proper or within and pursuant to the

scope of his discretionary authority as a police officer. Durica violated clearly-established

principles of law.

2.6.1 At all times relevant to Plaintiffs claims, specifically including 1 August

2007 through the present, Durica was a public official, a Texas Commission on Law

Enforcement Officer Standards and Education certified peace officer employed by the

Dallas Police Department.

Plaintiffs Response

Plaintiff admits the information in the above paragraph.

2.6.2 At all relevant times, Durica was discharging his duties and exercising his

discretionary authority as a police officer, and was acting within the course and scope of

his employment as a Dallas police officer.



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location of 8051 LBJ Freeway for the purpose of executing an arrest warrant on unknown

individuals. Therefore, knowledge of the existing blue warrant is a recent fabrication. For that

reason, there was no good faith belief that existed at the time for the arrest of Hannon.

2.6.5 Durica went to the hotel located at 8051 LBJ Freeway, Dallas, with other

Dallas police officers. While conducting undercover surveillance at the East side of the

hotel, Sundquist radioed that he observed in a motor vehicle located at the front of the

hotel a passenger who appeared to be Plaintiff. Durica drove closer to the front of the

hotel, and approached the suspect's vehicle on foot. Once there, Durica, Dodd, Sundquist

and defendant Lawrence Coddington detained the suspect.

Plaintiffs Response

Plaintiff contends in response to paragraph 2.6.5 that the above information is based upon

information from Sundquist who is known to be mendacious. In fact, the video reveals that

someone other than the Plaintiff was detained in the hotel lobby and Plaintiff is now aware that

this individual and others were at the Defendants request taken to a specific room in the hotel

for interrogation. It is not possible that all four of the officers Durica, Dodd, Sundquist, and

Coddington detained this individual. In fact, the video reveals that during the majority of this

period of time, Coddington was seated in the lobby.

2.6.6 While the other police officers detained the person Sundquist believed was

Plaintiff, Durica went back to his unmarked vehicle. As he did so, Durica believed that he

saw Plaintiff walking southbound from the eastern parking lot, toward LBJ freeway.



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Plaintiffs Response

Plaintiff contends in response to paragraph 2.6.8 that at least 2 Dallas Police Officers

were shown the digital video recording which clearly depicted someone other than Plaintiff was

allegedly carrying the black bag. Plaintiff specifically denies that Durica did not know of the

existence of the bag or its contents until the officers returned to the DPD station. The arrest

report belies Duricas claims.

Durica and the others were specifically informed that the bag was found outside the east

side of the hotel by the hotel engineer, Jaime Maltos. Durica and the other officers were advised

by Maltos of the existence of the black bag.

Durica also maintains that at no time prior to the March 25, 2008 meeting with the Dallas

County Prosecutors was Durica aware of the potentially exculpatory information contained on

the hotels videotape. The Plaintiffs criminal defense attorney was told the Defendants inquired

about the existence of the tapes but declined to retrieve a copy. Nevertheless, Durica claims

Nevitt later changed his story and no one ever allegedly asked for the videotape or asked Nevitt

why he dramatically changed the story. What Durica fails to provide for the Court is any

background or explanatory information to support the statement made in Paragraph 2.6.8 of his

Answer. On the one hand, Durica claims Nevitt later said he observed Plaintiff carrying the bag,

yet somehow Durica did not know of the existence of the bag! Of course, this is contrary to

Dodds sworn arrest affidavit: Durica (his partner) maintains that he never searched the black

bag and never knew of the existence of the bag or its contents until the officers returned to the

Dallas Police Departments station. Obviously, one if not all of the officers are mendacious.



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2.6.9 On 25 March 2008, Durica and defendants Randy Sundquist and David

Nevitt met with Dallas County assistant district attorneys, including Taly Haffar, who

was at the time the chief prosecutor in that office. In that interview, Durica stated to the

prosecutors that he never saw Plaintiff in actual physical possession of the black bag.

Plaintiffs Response

Plaintiff contends in response to paragraph 2.6.9 that if Durica had not specifically

claimed he saw the Plaintiff Hannon with the black bag, then there was no need for the 10 month

detention. It was only after being confronted with the video evidence that Durica finally

admitted he never saw the Plaintiff in actual physical possession of the black bag.

2.6.10 In the course of the meeting on 25 March 2008, Dallas County prosecutors

showed to Durica what they represented to Durica was a copy of a videotape taken by the

hotel's video surveillance system on the day Plaintiff was arrested. Durica observed from

the videotape that Plaintiff was not carrying the black bag that Nevitt had stated that he,

Nevitt, had observed Plaintiff to have carried.

Plaintiffs Response

Plaintiff admits the information in the above paragraph.

2.6.11 At no time prior to the 25 March 2008 meeting between Durica and the

various Dallas County prosecutors was Durica aware of the potentially exculpatory

information contained on the hotel's videotape.



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Plaintiffs Response

Plaintiff contends in response to paragraph 2.6.11 that the Defendants were specifically

provided a copy of the digital video recording by the hotel engineer, Jaime Maltos, within a day

or two of August 1, 2007. Durica knew the claims were false and only admitted such after

confrontation.

2.6.12 At no time did Durica conspire with any other person to create a false

police report, or to initiate criminal proceedings against Plaintiff that Durica knew to be

unsupportable.

Plaintiffs Response

Plaintiff contends in response to paragraph 2.6.12 that the police report is replete with

information that would have come from Durica. Also, the Plaintiff believes that Durica was the

person who accompanied Hannon to the federal authorities regarding the allegations of identity

theft. It is believed that Durica fabricated the allegations against Plaintiff in concert with the

others, and accordingly, only the fact-finder could determine the veracity of such claims by

Durica. If the Defendants were aware of the existence of the exculpatory video tape which was

provided to the Dallas Police Officers and was specifically shown to 2 officers on the day of the

arrest, then there was no reason for the fabricated charges against Plaintiff. Moreover, in light of

the fact that Jaime Maltos discovered the bag and showed the video tape to two Dallas police

officers, it is clear that a conspiracy exists. The only question is the level of each officers

involvement.



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2.7 Based upon the information described above in paragraphs 2.6.1 through

2.6.12, there was probable cause for Durica to believe that it was lawful to detain and

arrest Plaintiff. Durica was informed of the existence of a warrant for Plaintiffs arrest.

The existence of that arrest warrant was sufficient as a matter of law to justify Plaintiffs

arrest. Moreover, a fellow police officer subsequently informed Durica that Plaintiff

illegally possessed a controlled substance methamphetamine and a firearm. That

information also was sufficient as a matter of law to establish probable cause to arrest

Plaintiff. Therefore, Durica's actions were objectively reasonable, and did not violate

Plaintiffs constitutional rights. Alternatively, a reasonable police officer could have

believed that there was probable cause to arrest Plaintiff. Therefore, based upon the

foregoing facts, Durica was not plainly incompetent and did not knowingly violate the

law, and is entitled to qualified immunity as to Plaintiffs federal claims.

Plaintiffs Response

Plaintiff contends in response to paragraph 2.7 that there was no probable cause for the

detention of the Plaintiff. It is clear that the officers were there for other reasons and fabricated

charges against Hannon. There was no probable cause to charge the plaintiff with possession of

the methamphetamines, much less a firearm.

Whether or not there was a good faith belief that Nevitt was telling the truth and Durica

believed him is a question of fact. The circumstances of the arrest were no doubt discussed

between the police officers specifically: that the black bag was not found by a police officer, but

was in fact found and reported to the police by the hotel engineer. Also the hotel engineer

provided a copy of the digital video recording to the Dallas Police Officers and two of the Dallas

Police Officers (whose absolute identity is yet unknown) viewed the exculpatory video. Also, if



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Durica was operating on this blue warrant for an alleged parole violation, which is disputed,

Plaintiff would not have been detained for seven months. There would be no probable cause to

believe that the Plaintiff was involved in this issue, i.e., possession of methamphetamines and an

illegal firearm. Durica clearly violated the plaintiffs rights by combing with the other officers to

fabricate charges.

2.8 The facts described above in paragraphs 2.6.1 through 2.6.12 also

establish that Durica acted in "good faith," as that term is used in Texas jurisprudence

relating to the defense of official immunity as to Plaintiff's state law claims.

2.9 Durica pleads that he cannot be liable to Plaintiff as a matter of law as to

Plaintiff s purported state law claims because the acts that he is alleged to have performed

or failed to perform are discretionary powers for which he enjoys absolute immunity

under the Texas Tort Claims Act, Tex. Civ. Prac. & Rem. Code 101.056.

2.10 Durica pleads that he cannot be liable to Plaintiff regarding Plaintiff's state

law claims because Durica was acting within the course and scope of his public duties in

the performance of a governmental function, and when an employee acts in such a

capacity, that employee's liability can be no greater than that of the municipality.

Plaintiffs Response

Plaintiff contends in response to paragraphs 2.8 through 2.10 that if Durica in fact did

know, before the detention and arrest of Plaintiff, any of the information asserted in the above



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Plaintiffs responses, then he would not be in the course and scope of his employment and

therefore would have individual liability.

Conclusion

5. In such a conspiracy, it is the fact finder who must determine which, if any, of the

co-conspirators are telling the truth. The fact remains, the serious charges were fabricated. The

alleged basis for arrest is contradicted by the supplemented report, the recent claims of

undercover surveillance and the Defendants collective absence of knowledge of the Plaintiffs

physical appearance.

6. Even if the Defendants were at 8051 LBJ Freeway to execute a warrant for the

arrest of Plaintiff, Plaintiffs incarceration would not have lasted for the amount of time that

Plaintiff remained incarcerated on false charges. In fact, it is unknown and is particularly

questionable, if the purpose of the visit to 8051 LBJ Freeway was for the apprehension of

Plaintiff. If it were true that Plaintiff was the subject of the warrant, there would have been no

need for the supplemental report which states a suspect check of arrested person Hannon,

Thomas, Edward revealed one hold warrant out of TDJC totaling $.00.0. The warrants were

confirmed by teletype. Obviously, if the Defendants were there to arrest Plaintiff, the existence

of the warrant would have been confirmed prior to dispatching the five officers to 8051 LBJ

Freeway.

7. The Defendants collectively violated the Plaintiff's rights and there was no

reasonable basis for the violations.



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Case 3:09-cv-00066-N Document 34-2 Filed 07/06/2009 Page 1 of 5


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Hannon v Nevitt July 2009 Motion

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