Opinion
NO. 3-03-CV-0256-D
May 19, 2003
MEMORANDUM ORDER
Defendants Eric Tabbert and Craig Sherrill have filed a motion to require plaintiff to file a Rule 7(a) reply. For the reasons stated herein, the motion is granted.
The Civil Justice Expense and Delay Reduction Plan adopted by this court provides that "[e]ach judge will continue to give priority to the monitoring and resolution of pending motions." Plan at § XI(2), reprinted in Texas Rules of Court — Federal at 282 (West Pamph. Supp. 2003). To eliminate undue delay and unnecessary expense to the parties in this and other civil actions, and because plaintiff has not alleged sufficient facts in her complaint to overcome the defense of qualified immunity, the court will rule on defendants' motion without a written response.
I.
This is a civil rights action brought by Plaintiff Debra Forge arising out of the death of her son, Keenon, while in police custody. On July 1, 2002, Keenon was involved in a single car accident on Interstate Highway 45 in Dallas, Texas. (Plf. Compl. at 2, ¶ 8). Paramedics responded to the scene, observed no major injuries, and reported that Keenon was "O.K." ( Id. at 2, ¶ 9). The police were also dispatched. Although her complaint is short on details, plaintiff alleges that Dallas Police Officers Eric Tabbert and Craig Sherrill placed Keenon in the front seat of their squad car without locking the door. (Id. at 4, ¶ 17(C)). An altercation ensued and Keenon was injured. When paramedics returned to the scene approximately one hour later, they found Kennon unconscious in the police car with blood around his mouth and nose. (Id. at 4, ¶ 11). Multiple wounds were also noted on his body. ( Id. at 5, ¶ 12). Keenon was transported to Baylor Hospital where he was pronounced dead. ( Id.). An autopsy revealed lesions around the neck area indicative of manual strangulation. ( Id. at 5, ¶ 14). Other injuries, such as abrasions to the forehead, left ear, left eye and a fractured nose, were also noted in the autopsy report. ( Id.). According to plaintiff, "[t]hese injuries were cased by Defendants." ( Id.).As part of their answer, Defendants Tabbert and Sherrill have pled the affirmative defense of qualified immunity. Defendants allege that when they first encountered Keenon, he was "acting strangely" and threatening to commit suicide by jumping from a highway overpass. (Def. Ans. at 11, ¶ 2.6.6). Although he had no obvious signs of physical injury, the defendants suspected that Keenon was under the influence of drugs or alcohol. ( Id. at 11-12, ¶ 2.6.7). Defendants placed Keenon under arrest, handcuffed him, and secured him with a seat belt in the front passenger seat of their patrol car. ( Id. at 12-13, ¶¶ 2.6.9-2.6.12). The widows were rolled up and the car door was electronically locked from the inside. ( Id. at 13, ¶ 2.6.12). Tabbert remained in the car with Kennon while Sherrill arranged for a wrecker to tow the damaged vehicle. ( Id. at 14, ¶ 2.6.15). Then, suddenly and without warning, Keenon slipped out of his handcuffs, released the seat belt latch, opened the locked car door, and tried to escape from custody. ( Id. at 14, ¶ 2.6.18). A physical confrontation ensued when Tabbert attempted to restrain the suspect. ( Id. at 15, ¶ 2.6.19). More particularly, "[Keenon] kicked, and thrashed his head, arms, and torso about inside the police car, causing other injuries to both himself and Tabbert." ( Id.). Sherrill intervened and helped subdue Kennon. ( Id. at 15, ¶ 2.6.20). Eventually, the defendants were able to regain control of the suspect, apply handcuffs, and strap him into the front seat of the squad car. (Id.). Keenon tried to escape again a short time later by unlatching his seat belt. ( Id. at 16, ¶ 2.6.23). Another struggle ensued where Keenon thrashed, kicked, and resisted the officers. ( Id. at 16, ¶ 2.6.24). Defendants called for a second ambulance to re-evaluate and treat Keenon. ( Id.). When the ambulance arrived, defendants relinquished custody of the suspect and had no further contact with him. ( Id. at 17, ¶ 2.6.28).
Defendants allege they used only that degree of force reasonably necessary under the circumstances to maintain custody of Keenon, who was under arrest and actively trying to resist and escape. By this motion, defendants seek an order requiring plaintiff to plead specific facts in a Rule 7(a) reply to overcome their entitlement to qualified immunity.
II.
Government officials are entitled to qualified immunity if their conduct does not "violate clearly established statutory or constitutional rights of which a reasonable person would have known." Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 2738, 73 L.Ed.2d 396 (1982); see also Anderson v. Creighton, 483 U.S. 635, 63940, 107 S.Ct. 3034, 3039, 97 L.Ed.2d 523 (1987). Qualified immunity is not merely a defense to liability but an immunity from suit. Swint v. Chambers County Comm'n, 514 U.S. 35, 42, 115 S.Ct. 1203, 1208, 131 L.Ed.2d 60 (1995); Mitchell v. Forsyth, 472 U.S. 511, 526, 105 S.Ct. 2806, 2815, 86 L.Ed.2d 411 (1985). For this reason, the Supreme Court has repeatedly admonished courts to decide the issue of qualified immunity "at the earliest possible stage in litigation." Hunter v. Bryant, 502 U.S. 224, 227, 112 S.Ct. 534, 536, 116 L.Ed.2d 589 (1991); Anderson, 107 S.Ct. at 3042 n. 6; Harlow, 102 S.Ct. at 2738.
Although a plaintiff need not anticipate a claim of qualified immunity in his original pleading, the Fifth Circuit has held that trial courts can, and in most instances should, require a plaintiff to "engage the affirmative defense of qualified immunity when invoked." Schultea v. Wood, 47 F.3d 1427, 1430 (5th Cir. 1995) (en banc). See also Reyes v. Sazan, 168 F.3d 158, 161 (5th Cir. 1999). This is done through a Rule 7(a) reply. See FED. R. Civ. P. 7(a). Such a reply "must be tailored to the assertion of qualified immunity and fairly engage its allegations." Schultea. 47 F.3d at 1433. "Vindicating the immunity doctrine will ordinarily require such a reply, and a district court's discretion not to do so is narrow indeed when greater detail might assist." Id. at 1434. Here, plaintiff has not alleged any facts to overcome the defense of qualified immunity. The court therefore determines that a reply is warranted. See Todd v. Hawk, 72 F.3d 443, 446 (5th Cir. 1995) (Rule 7(a) reply is the "preferred procedure" prior to consideration of motion to dismiss on grounds of qualified immunity); Hinds v. Slagel, 2001 WL 548906 at *2 (N.D. Tex. May 18, 2001) (Fitzwater, J.).
Rule 7(a) provides, in pertinent part, that "the court may order a reply to an answer or a third-party answer." FED. R. Civ. p. 7(a).
Accordingly, defendants' motion for a Rule 7(a) reply is granted. Plaintiff shall file a reply under Rule 7(a) of the Federal Rules of Civil Procedure by June 16, 2003. This reply must be tailored to the assertion of qualified immunity and fairly engage its allegations. Plaintiff must "support his claim with sufficient precision and factual specificity to raise a genuine issue as to the illegality of defendants' conduct at the time of the alleged acts." Reyes, 168 F.3d at 161, quoting Schultea, 47 F.3d at 1434. Stated differently, plaintiff must explain why the conduct of Defendants Tabbert and Sherrill was objectively unreasonable in light of the legal rules clearly established at the time of the incident in question and the circumstances then existing.
SO ORDERED.