Opinion
Civil Action No. 5:00-CV-255-C
July 25, 2001
ORDER
On this date the Court considered Defendants Thomas Hendrick ("Hendrick"), Richard Lewis ("Lewis"), Russell Lilley ("Lilley"), Tommy Ray ("Ray"), and Jerrold Welborn's ("Welborn") (collectively, "Sheriffs Deputies") Motion for Summary Judgment on the basis of qualified immunity [Docket entry number 53], filed January 5, 2001. Plaintiff, Ollie F. Johnson ("Johnson") filed a Response to the Sheriff's Deputies' Motion on February 12, 2001, to which the Sheriff's Deputies filed a Reply on February 26, 2001. This Court granted Plaintiff's motion to file a Supplemental Response, and Johnson filed his Supplemental Response on March 9, 2001. The Sheriff's Deputies filed no supplemental reply.
Also before the Court is Defendant Douglas Barnes' ("Barnes") Motion for Summary Judgment Based on Qualified Immunity [Docket entry number 61], as well as the qualified immunity motions for Defendant Earl Bartley ("Bartley") [Docket entry number 63], Defendants Cameron Cowan and William Sowder ("Cowan and Sowder") [Docket entry number 69], Defendant Frank Mclnroe ("Mclnroe") [Docket entry number 67], and Defendant Paul Scarborough ("Scarborough") [Docket entry number 65]. Each of these motions was filed on January 8, 2001. Johnson filed a consolidated Response to the motions of Barnes, Hartley, Mclnroe, and Scarborough (collectively, "Sheriff's Department Supervisors") on February 12, 2001, to which the Sheriff's Department Supervisors filed a joint Reply on February 26, 2001. By this Court's Order on February 28, 2001, Plaintiffs claims against Defendants Cowan and Sowder were dismissed due to absolute immunity. This Court also granted Plaintiff's motion to file a Supplemental Response, and Johnson filed his Supplemental Response on March 9, 2001, to which the Sheriff's Department Supervisors filed a Supplemental Reply on June 5, 2001.
Also before the Court is Defendant Jack Mitchell's ("Mitchell") Motion for Summary Judgment Based on Qualified Immunity [Docket entry number 56], filed on January 8, 2001. Johnson filed a Response to Mitchell's Motion on February 12, 2001, to which Mitchell filed a Reply on February 27, 2001. This Court granted Plaintiffs motion to file a Supplemental Response, and Johnson filed his Supplemental Response on March 9, 2001, to which Mitchell filed a Supplemental Reply on June 5, 2001.
Johnson incorporated his Response to Mitchell's motion into his Response to the Sheriffs Department Supervisors' Motions for Summary Judgment. Because Defendant Mitchell is represented by different counsel and filed separate pleadings, this Court will examine Plaintiffs claims vis-a-vis Defendant Mitchell separately for simplicity purposes.
Also before the Court is a Motion for Summary Judgment Based on Qualified Immunity by Defendants Gilbert Flores ("Flores"), Thomas Head ("Head"), James Kitten ("Kitten"), and Kenny Maines ("Maines") [Docket entry number 59], filed January 8, 2001. Johnson filed a Response to the motions of these Defendants (collectively, "Lubbock County Commissioners") on February 12, 2001, to which the Lubbock County Commissioners filed a Reply on February 27, 2001. This Court granted Plaintiff's motion to file a Supplemental Response, and Johnson filed his Supplemental Response on March 9, 2001, to which the Lubbock County Commissioners filed a Supplemental Reply on June 5, 2001.
Johnson incorporated his Supplemental Response to the Lubbock County Commissioners' Motion into his Supplemental Response to the Sheriff's Department Supervisors' motions.
The Court also considers a number of other motions that relate to the qualified immunity issue. On February 26, 2001, the Sheriffs Department Supervisors filed a Motion to Strike [Docket entry number 86] portions of the affidavit Johnson filed in his February 12, 2001 Response to the Sheriff's Department's Motion for Summary Judgment. On March 13, 2001, the Sheriffs Department Supervisors filed a Motion to Strike [Docket entry number 106] portions of Johnson's Supplemental Appendix of March 9, 2001. Johnson filed no response to either of these motions.
On February 27, 2001, Mitchell and the Lubbock County Commissioners filed motions to strike [Docket entry numbers 89 and 91] portions of the affidavit Johnson filed in his February 12, 2001 Response to these Defendants' Motions for Summary Judgment. Johnson filed no response to either of these motions.
After carefully considering all relevant arguments and evidence, the Court GRANTS in part and DENIES in part Defendants' Motions for Summary Judgment and Motions to Strike.
I. STANDARDS
Summary judgment is appropriate only if "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any," when viewed in the light most favorable to the non-moving party, "show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249-50 (1986). A dispute about a material fact is "genuine" if the evidence is such that a reasonable jury could return a verdict for the non-moving party. Id. In making its determination, the court must draw all justifiable inferences in favor of the non-moving party. Id. at 255. Once the moving party has initially shown "that there is an absence of evidence to support the non-moving party's case," Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986), the non-movant must come forward, after adequate time for discovery, with significant probative evidence showing a triable issue of fact. FED.R.ClV.P. 56(e); State Farm Life Ins. Co. v. Gutterman, 896 F.2d 116, 118 (5th Cir. 1990). Conclusory allegations and denials, speculation, improbable inferences, unsubstantiated assertions, and legalistic argumentation are not adequate substitutes for specific facts showing that there is a genuine issue for trial. Douglass v. USAA, 79 F.3d 1415, 1429 (5th Cir. 1996) (en banc); SEC v. Recile, 10 F.3d 1093, 1097 (5th Cir. 1993). To defeat a properly supported motion for summary judgment, the non-movant must present more than a mere scintilla of evidence. See Anderson, 477 U.S. at 251. Rather, the non-movant must present sufficient evidence upon which a jury could reasonably find in the non-movant's favor. Id.
II. ANALYSIS
Johnson's suit against Defendants is brought, in part, pursuant to 42 U.S.C. § 1983. Section 1983 creates a private right of action for redressing the violation of federal law by those acting under color of state law. See Migra v. Warren City Sch. Dist. Bd. of Educ., 465 U.S. 75, 82(1984). It provides:
Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State . . . subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured. . . .42 U.S.C. § 1983. "Section 1983 `is not itself a source of substantive rights,' but merely provides `a method of vindicating federal rights conferred elsewhere.'" Albright v. Oliver, 510 U.S. 266, 271 (1984) (quoting Baker v. McCollan, 443 U.S. 137, 144 n. 3 (1979)). The law was enacted to prevent "[a governmental official's] misuse of power, possessed by virtue of state law and made possible only because the [official] is clothed with authority of state law." Andrade v. Chojnacki, 65 F. Supp.2d 431, 451 (W.D. Tex. 1999) (alterations in original). To establish a claim under Section 1983, a plaintiff must prove the following elements: (1) the conduct in question was committed by a person acting under the color of state law; and (2) the conduct deprived the plaintiff of a right secured by the Constitution or the laws of the United States. Martin v. Thomas, 973 F.2d 449, 452-53 (5th Cir. 1992); Augustine v. Doe, 740 F.2d 322, 324-25 (5th Cir. 1984).
Because § 1983 is to be read "in harmony with general principles of tort immunities and defenses rather than in derogation of them," Imbler v. Pachtman, 424 U.S. 409, 418 (1976), officials sued in their individual capacity may assert a defense of qualified immunity. See Petta v. Rivera, 143 F.3d 895, 898 (5th Cir. 1998). The doctrine of qualified immunity serves to shield a government official as "an immunity from suit rather than a mere defense to liability. . . ." Saucier v. Katz, ___ U.S. ___, 121 S.Ct. 2151, 2156 (2001) (quoting Mitchell v. Forsyth, 472 U.S. 511, 526 (1985)). The affirmative defense should be resolved at the earliest possible stage of litigation, Saucier, 121 S.Ct. at 2156, and should protect "all but the plainly incompetent or those who knowingly violate the law." Malley v. Briggs, 475 U.S. 335, 344-345 (1986).
When examining the defense of qualified immunity, the Court must ask a threshold question: "Taken in the light most favorable to the party asserting the injury, do the facts alleged show the officer's conduct violated a constitutional right?" Saucier, 121 S.Ct. at 2156. "[I]f a [constitutional] violation could be made out on a favorable view of the parties' submissions, the next, sequential step is to ask whether the right was clearly established." Id. (alterations added). In other words, the Court should examine "whether it would be clear to a reasonable officer that his conduct is unlawful in the situation he confronted." Id. (citing Wilson v. Layne, 526 U.S. 603, 615(1999)). If the plaintiff is unable to show a constitutional violation and that such a right was clearly established at the time, the inquiry ceases and the defendant is entitled to judgment on the issue.
To the extent that the plaintiff is able to show that a violation of a clearly established constitutional right occurred (or at least that the evidence gives rise to a genuine issue of material fact regarding actions that would constitute a violation of a clearly established right if proven to be true), the Court must then make a third inquiry and determine whether the defendant official's alleged conduct was objectively reasonable in light of the constitutional right allegedly violated. See Hare v. City of Corinth, 135 F.3d 320, 325 (5th Cir. 1998). Although this third inquiry (called the "qualified immunity inquiry") appears to be very similar to the determination of whether the constitutional right allegedly violated was "clearly established," the United States Supreme Court recently held that the analysis remains distinct. Saucier, 121 S.Ct. at 2158. This is because
See Kipps v. Caillier, 197 F.3d 765, 768 (5th Cir. 1999).
[officers] might correctly perceive all of the relevant facts but have a mistaken understanding as to whether a particular amount of force is legal in those circumstances. If the officer's mistake as to what the law requires is reasonable, however, the officer is entitled to the immunity defense.Id. Determination of objective reasonableness is a question of law for the courts to decide. Kipps, 197F.3d at 769.
A. Evidentiary Matters Before the Court
At the outset, the Court notes that Plaintiff's Responses to Defendants' Motions attempt to "incorporate by reference" all summary judgment evidence included in his Appendix. In very few instances does the Plaintiff's Response or Supplemental Response specifically cite to summary judgment evidence contained in Johnson's Appendix.
See, e.g., Plaintiffs Brief in Support of Plaintiffs Response to Defendants Hendrick, Lewis, Lilley, Ray Welborn's Motion for Partial Summary Judgment, filed February 12, 2001:
In support of his Response, Mr. Johnson files an Appendix simultaneously herewith. The evidence contained in the Appendix is incorporated by reference for all purposes[.] This evidence shows that there is a dispute as to almost every material fact upon which the defendants rely on their summary judgment motions.
(Alterations added).
The law is well-settled that unsubstantiated assertions are not competent summary judgment evidence. Celotex, 477 U.S. at 324. As a result, a party opposing summary judgment "is required to identify specific evidence in the record and to articulate the precise manner in which that evidence supports his or her claim." Ragas v. Tennessee Gas Pipeline Co., 136 F.3d 455, 458 (5th Cir. 1998) (emphasis added). Failure to identify specific evidence in the record and to articulate the manner in which the evidence should be applied can be fatal to a party's claims, as "Rule 56 does not impose upon the district court a duty to sift through the record in search of evidence to support a party's opposition to summary judgment." Id. (citing Skotak v. Tenneco Resins, Inc., 953 F.2d 909, 915-16 (5th Cir. 1992)). See also Forsyth v. Barr, 19 F.3d 1527, 1536-37 (5th Cir. 1994) (finding two volumes of summary judgment evidence insufficient to preclude summary judgment when plaintiffs failed to identify specific portions that support their claims). Furthermore, Local Rule 56.5(c) expressly requires that a party filing an appendix "must include in its brief citations to each page of the appendix that supports each assertion that the party makes concerning the summary judgment evidence."
To the extent Plaintiff seeks for the Court to peruse his Appendix to find evidence to support his summary judgment arguments, the Court refuses to do so. Rather, this Court will only consider the admissible summary judgment evidence discussed and specifically identified in the parties' motions, responses, and supplemental pleadings.
B. Section 1983 Claims Against Defendants Hendrick, Lewis, Lilley. Ray and Welborn
Johnson alleges that Defendants Hendrick, Lewis, Lilley, Ray and Welborn violated his civil rights when he sustained injuries in connection with his confinement at the Lubbock County Jail. Specifically, Plaintiff claims in his Brief that the Sheriff's Deputies committed excessive use of force upon Plaintiff when they participated in a "savage beating and kicking of a disabled and unarmed prisoner who was fully restrained and not offering any resistance. . . ." Defendants deny this claim and assert that Plaintiff has failed to offer "a scrap of objective evidence available to support a conclusion that the deputies acted sadistically and maliciously for the purpose of inflicting harm."
The Court begins by providing a brief background of the events that led to Plaintiffs contact with Defendants. On March 12, 1998, an arrest warrant was issued for Plaintiff. The court set bond at $2,000.00 and set a court date for April 30, 1998. On April 3O, 1998, Plaintiff was late for his court appearance, and the court revoked his bond. After presenting to the Lubbock County Sheriff's Department that same day, Plaintiff was taken into custody and his arraignment was rescheduled for that evening.
At approximately 10:00 p.m. on April 30, jailers awakened Johnson for arraignment. Approximately thirty minutes later, jailers handcuffed Plaintiff, who is a large, muscular man, and chained him to other Lubbock County inmates for movement to the arraignment. At some time during these events, Defendant Lewis noticed Plaintiff was wearing hair ties or rubber bands in his hair, and Lewis ordered Plaintiff to remove them. Plaintiff refused to remove them. Defendant Ray referred the matter to Defendant Welborn, who ordered Defendant Ray to return Plaintiff to his cell and take Plaintiff to arraignment at a later time.
Defendants present summary judgment evidence that Plaintiff then began throwing his elbows, hitting Defendant Ray in the mouth. Defendant Lewis then moved to assist Defendants Ray and Welborn in escorting Plaintiff to his cell. Plaintiff asserts that as deputies began transporting Plaintiff to his cell, Defendant Lewis went behind Plaintiff and yanked Plaintiff's underwear upwards.
The Court finds different accounts of what happened after Johnson reached his cell. According to the Defendants, Johnson grabbed the bars of the jail cell and refused to move further. Defendant Hendrick then ordered Johnson to be handcuffed and to be moved to the separation cell for violent prisoners. The deputies had apparently been able to cuff only one of Johnson's wrists, and Defendant Lilley asserts he then decided to intervene in the struggle by grabbing the Plaintiff's hair and pulling him backwards to the floor. According to Defendants' account of the events, Johnson then released his hold on the jail bars and the deputies were able to cuff him.
En route to the violent separation cell, according to the Defendants, "the group fell to the floor." According to Defendant Lewis, the deputies began to carry Johnson to the cell because Defendant Hendrick "said something to the effect that [Johnson] had pins in his knees, or . . . his knee was hurt." The party reached the violent separation cell, where Johnson "continued to struggle while the cuffs were being removed." Plaintiff then allegedly threatened Defendant Welborn.
According to Plaintiff's version of what happened after he had been returned to his cell, Defendant Welborn "shoved stuck (sic) his finger into Mr. Johnson's eye-socket." Johnson also asserts it was only after he had been fully restrained in handcuffs that Defendant Lilley grabbed Johnson's hair and dragged him to the floor. Johnson also asserts that he was taken to the violent separation cell where, still in handcuffs, he was "kicked, beaten and had his knee purposely stepped on by the Guards." He asserts that Defendant Hendrick later "stopped the attack" and instructed Johnson to change into fresh prison clothes. Plaintiff was then taken to his arraignment.
The Court finds that Plaintiffs allegations of violations of his constitutional rights find their basis in the Fourteenth Amendment to the United States Constitution, as Johnson is considered to have been a "pretrial detainee" at the time of the events in question. The approach to analyzing excessive force claims by pretrial detainees is "`whether force was applied in a good faith effort to maintain or restore discipline, or maliciously and sadistically for the very purpose of causing harm.'" Valencia, 981 F.2d at 1446 (quoting Hudson v. McMillian, 503 U.S. 1, 6 (1992)). Courts in the Fifth Circuit have been instructed to consider the following factors in making a determination of whether a constitutional deprivation occurred: (1) the need for the application of force; (2) whether a threat was reasonably perceived by the detention official applying the force; (3) whether the detention facility official was in a situation requiring immediate and decisive action; and (4) any efforts made to temper the severity of a forceful response. Fickes v. Jefferson County, 900 F. Supp. 84, 91 (E.D. Tex. 1995) (citing Valencia, 981 F.2d at 1446).
The Fifth Circuit has recently held:
While the Fourth Amendment protects arrestees, once an arrest is complete, pretrial detainees are protected by the due process clause of the Fifth or Fourteenth Amendments. Although the point at which an arrest ends and pretrial detainment begins is not always clear, we have held that the Fifth or Fourteenth Amendments begin to protect persons "after the incidents of arrest are completed, after the plaintiff has been released from the arresting officer's custody, and after the plaintiff has been in detention awaiting trial for a significant period of time." Thus, in Brothers [v. Klevenhagen], we found Brothers to be a pretrial detainee protected by the Fourteenth Amendment where he had been arrested, processed by the police department, and spent several hours in jail before the police allegedly used excessive force on him.Gutierrez v. City of San Antonio, 139 F.3d 441, 451 (5th Cir. 1998) (Citations omitted). Although the Fifth Circuit has noted that the line of demarcation between when an arrest ends and pretrial detention begins remains an "unanswered question," Valencia v. Wiggins, 981 F.2d 1440, 1449 (5th Cir. 1993), the Court finds the facts of the present case are more closely akin to those in Brothers, wherein the Fifth Circuit instructed in dicta that a prisoner who was processed and held in jail for "a few hours" "surely would have been considered a pretrial detainee" for the purposes of a § 1983 analysis. 28 F.3d 452, 454, 456 (5th Cir. 1994).
These are the same factors used to determine whether a convicted prisoner sufficiently states an excessive force claim against a prison official under the Eighth Amendment to the United States Constitution. See Baldwin v. Stalder, 137 F.3d 836, 838 (5th Cir. 1998) (citing Hudson, 503 U.S. at 7). The Court notes that Plaintiff takes a rather schizophrenic approach to the Defendants' qualified immunity motion, first appearing to agree with the application of the aforementioned test and later in his Supplemental Response arguing that the court should apply the conditions of confinement test of Bell v. Wolfish, 441 U.S. 520, 535-39 (1979). Whatever the reason for Plaintiffs sudden legal U-turn is irrelevant, as this Court finds the test set out in Valencia to be the proper standard for the instant case.
The Court begins the analysis of whether the Sheriff's Deputies are entitled to qualified immunity by examining whether the admissible summary judgment evidence shows the officers' conduct violated Johnson's constitutional rights. The Court answers this inquiry in the affirmative. Specifically, the summary judgment evidence indicates that despite Johnson's refusal to comply with the Sheriffs Deputies' command to remove ties from his hair and later to remove his hands from the bars of his jail cell, the Sheriff's Deputies' later conduct arguably violated Johnson's constitutional rights in two instances. First, a reading of the summary judgment evidence in a light most favorable to Johnson suggests that after Johnson had released his hands from the jail cell's bars and had been handcuffed, Defendant Lilley then decided to grab Johnson's hair and pull him to the floor. Second, Johnson presents adequate summary judgment evidence that after he was taken to the separation cell, still handcuffed, he was kicked and beaten by the Sheriff's Deputies. In both of these instances, the Court finds that the application of force was unnecessary as Johnson was handcuffed and essentially defenseless at the time. The Sheriff's Deputies presented no evidence that they reasonably perceived Johnson to pose any threat to them, other than the disputed evidence about whether Johnson was handcuffed at the time Defendant Lilley pulled him to the floor and some allegations that Johnson verbally "threatened" Defendant Welborn after "struggling" with the guards in the separation room. Furthermore, a genuine issue of material fact remains as to whether the officers were faced with a situation in which immediate and decisive action was necessary, or whether the Deputies took action against Johnson after the risk of harm had subsided. Finally, although the allegations that Johnson had earlier hit Defendant Ray with his elbows remain undisputed, the Court finds no evidence of any other forceful action taken by Johnson once he had been handcuffed. At this stage in the proceedings, the Court finds that such evidence is sufficient to prove that such conduct was not made in a good-faith effort to maintain or restore discipline; the evidence suggests the Deputies' conduct was grossly disproportionate to the need for action and inspired by malice. As in Valencia, this was no "careless or unwise excess of zeal" as Defendants in this case attempt to assert.
While the term "beaten" appears to be conclusory in nature, the Court has found sufficient admissible summary judgment evidence to establish that Johnson was allegedly hit and kicked repeatedly while defenseless.
On the basis of evidence submitted in this case, the Court finds that Johnson's alleged injuries were more than de minimis. Furthermore, evidence of the alleged conduct, in a light most favorable to Johnson, suggests that the Sheriff's Deputies' use of force was "repugnant to the conscience of mankind." See Baldwin, 137 F.3d at 839 (quoting Siglar v. Hightower, 112 F.3d 191, 193 (5th Cir. 1997); Hudson, 503 U.S. at 7).
Second, the Court finds that Johnson's right to be free from excessive force was clearly established at the time of the conduct in question. The Fifth Circuit in Valencia held that a pretrial detainee's constitutional protection from excessive force was established at least as early as 1987, more than ten years before the alleged conduct by the Sheriff's Deputies in this case. See id. at 1448.
Finally, the Court examines whether the Sheriff's Deputies' alleged conduct was objectively reasonable and finds that such conduct, as alleged, was not objectively reasonable. In light of the available summary judgment evidence, the Court finds as a matter of law that a reasonable officer would understand that the above alleged uses of force of Johnson would violate his constitutional right to be free from excessive force. In other words, no reasonable officer would be mistaken that the amount of force applied to Johnson once he had released his hands from the jail cell's bars would be unreasonable. Furthermore, no reasonable officer would be mistaken that the amount of force applied to Johnson, still handcuffed in the separation cell, would be excessive and unreasonable. Because the Court finds that the deliberate force allegedly used against Johnson would be excessive and unreasonable under the circumstances if proven at trial to be true, the Sheriff's Deputies' Motion for Summary Judgment on the basis of qualified immunity is DENIED with regard to Plaintiff's excessive use of force claims.
Johnson also alleges that the Defendants are liable under Section 1983 for malicious prosecution when two officers filed charges of assault on a public servant and retaliation upon Johnson after the alleged altercation in the separation cell. However, the United States Supreme Court has held that a claim of malicious prosecution is not independently actionable under § 1983 when the substantive due process clause of the Fourteenth Amendment is used as a basis for alleging a "constitutional violation." Albright v. Oliver, 510 U.S. at 274. Despite Plaintiff's citation to a 1988 case from the Second Circuit to generally represent the proposition that malicious prosecution may support a § 1983 claim, the Court notes that this is not the Second Circuit. Johnson is unable to allege a Fourth Amendment violation because, according to binding authority in this jurisdiction:
Nevertheless, the Court has found numerous Second Circuit cases subsequent to Albright that are consistent with the Supreme Court's holding. See Murphy v. Lynn, 118 F.3d 938 (2d Cir. 1997), cert. denied, 522 U.S. 1115 (1998); Lennon v. Miller, 66 F.3d 416, 423 (2d Cir. 1995); Singer v. Fulton County Sheriff, 63 F.3d 110, 116 (2d Cir. 1995).
[o]nce an individual has been arrested and is placed into police custody, and surely after the arresting officer has transferred the individual to a jail cell, the individual becomes a pretrial detainee, protected against excessive force by the Due Process Clause.Brothers v. Klevenhagen, 28 F.3d 452, 457 (5th Cir. 1994). As such, the Court finds that Johnson has failed to raise a genuine issue of material fact as to any constitutional violation for malicious prosecution. The Court GRANTS the Sheriffs Deputies' Motion for Summary Judgment on the basis of qualified immunity as to Johnson's claims for malicious prosecution.
The Court does not address Johnson's independent claims for malicious prosecution under Texas law in this Order.
C. Section 1983 Claims Against Defendants Barnes, Bartley. Mclnroe, and Scarborough
Plaintiff also claims that Defendants Barnes, Bartley, Mclnroe, and Scarborough as Sheriff's Department Supervisors, are liable in their individual capacity under Section 1983 as a result of their alleged involvement in the incidents involving the Plaintiff. In his seven-page Response to the supervisory officials' Motions for Summary Judgment (more than four of which consist of a summary and the summary judgment standards), Johnson provides only two relevant paragraphs of summary judgment "evidence" on page 6 to support the allegations in his Complaint and to show that these Defendants are not entitled to qualified immunity. Specifically, Johnson claims he was beaten in view of the jail's surveillance system and that the jail's "guards" (not supervisors) were allowed to remove the tape to conceal evidence of the attack on Johnson. In addition to this claim, Johnson only claims the supervisory officials are liable under § 1983 under the following theory:
In his Original Complaint, Plaintiff also asserted claims against District Attorney Bill Sowder and Assistant District Attorney Cameron Cowan. By Order of February 28, 2001, this Court found that Defendants Sowder and Cowan were entitled to absolute prosecutorial immunity; as such, their qualified immunity motions are DENIED as MOOT.
All of the Supervisor Deputies had a duty to investigate Mr. Johnson's complaints of mistreatment and to avoid participating in a cover-up, which they did. The Supervisor Deputies knew of the attack on Mr. Johnson but failed to take any action whatsoever. Mr. Johnson asserts that these failures were based on his membership in a protected class, i.e., African-American.
The Plaintiff cites to no summary judgment evidence to support any of these statements.
"Supervisory officials may be held liable [under § 1983] only if: (i) they affirmatively participate in acts that cause constitutional deprivation; or (ii) implement unconstitutional policies that causally result in plaintiffs injury." Baker v. Putnal, 75 F.3d 190, 199 (5th Cir. 1996) (citing Mouille v. City of Live Oak, 977 F.2d 924, 929 (5th Cir. 1992)) (alterations added). Because Plaintiff's Response to the summary judgment motions does not provide admissible summary judgment evidence of any actions affirmatively taken by Sheriff's Department Supervisors that allegedly resulted in the deprivation of Plaintiff `s constitutional rights, the Court construes Plaintiff's evidence to be an argument that the Supervisors' inaction and failure to train the Sheriff's Department Deputies resulted in the Plaintiff's injury. When alleging that a failure to supervise subordinates caused the constitutional deprivation (in effect, creating an unconstitutional policy), Johnson must establish some connection between the Supervisor's actions and the alleged constitutional violation by showing that: (1) the Supervisor failed to train or supervise the Deputy involved; (2) there is a causal connection between the alleged failure to supervise or train and the alleged violation of Plaintiffs rights; and (3) the failure to train or supervise constituted deliberate indifference to Plaintiff's constitutional rights. See Thompson v. Upshur County, 245 F.3d 447, 459 (5th Cir. 2001). The Fifth Circuit has recently discussed the quantum of evidence sufficient to prove deliberate indifference at the summary judgment stage:
Deliberate indifference "is a stringent standard of fault, requiring proof that a municipal actor disregarded a known or obvious consequence of his action." Board of the County Comm'rs of Bryan County v. Brown, 520 U.S. 397, 408 (1997). "The `deliberate indifference' standard permits courts to separate omissions that `amount to an intentional choice' from those that are merely `unintentionally negligent oversight[s].'" Southard v. Texas Bd. of Crim Justice, 114 F.3d 539, 550 (5th Cir. 1997) (quoting Gonzalez v. Ysleta Indep Sch. Dist., 996 F.2d 745, 756 (5th Cir. 1993); Rhyne v. Henderson County, 973 F.2d 386. 392 (5th Cir. 1992)).
Proof of more than a single instance of the lack of training or supervision causing a violation of constitutional rights is normally required before such lack of training or supervision constitutes deliberate indifference. The plaintiff must generally demonstrate at least a pattern of similar violations. Furthermore, the inadequacy of training must be obvious and obviously likely to result in a constitutional violation.Id. (adopting standards required to prove municipal liability for questions of supervisory liability).
Thompson apparently also omits the "gross negligence" standard as sufficient to establish supervisor liability for failure to train or supervise.
Johnson attempts to shore up his dearth of relevant summary judgment evidence in his Supplemental Response by arguing that the Sheriff's Department Supervisors should be liable for implementing the policies, practices, and procedures of the Lubbock County Jail. For example, Johnson alleges that such Defendants were "present in the Sheriff's Department during the formative years of the illegal practices and customs which had developed at the Lubbock County jail," and that such practices and customs "led directly to the ongoing pattern of corruption and abuse which became a hallmark of the Lubbock County jail prior to and during the period of that [sic] the Plaintiff was first beaten, and then illegally incarcerated at the jail." In other words, Plaintiff continues, the Plaintiff was injured because Lubbock County, through the supervisory officials, turned a "blind eye" to the due process rights of inmates in general. Plaintiff also argues that the supervisory officials failed to properly supervise the jail and its employees on issues such as the proper use of force, medical requests, and the need to prevent illegal practices, such as the filing of "false charges and fabricating evidence."
Despite all of these serious allegations of wrongdoing at the Lubbock County Jail, Johnson provides virtually no relevant evidence to support a pattern of excessive use of force due to improper training or supervision of jail employees. For example, the documents submitted as summary judgment "evidence" actually show the lack of evidence Johnson has produced to overcome Defendants' qualified immunity:
(1) An April 11, 2000 article from the Lubbock Avalanche-Journal, discussing Lubbock County's approval of an insurance contract with the Texas Association of Counties.
(2) An article from the Lubbock Avalanche-Journal, reporting on the County's "piddler" program whereby inmates perform work for private citizens.
(3) An article from the Lubbock Avalanche-Journal, reporting that Municipal Judge Jan Blacklock Matthews wrote a letter to former Sheriff D.L. "Sonny" Keesee, stating that the sheriff is in "clear violation of law" by releasing prisoners from the county jail on inmates' personal recognizance, contravening the bail orders set by city judges.
(4) A December 18, 1998 article from the Lubbock Avalanche-Journal, reporting that a plaintiff who had sued Lubbock County for retaliatory discharge was close to collecting $2.47 million in damages from the County.
(5) A February 18: 1998 article from the Lubbock Avalanche-Journal, reporting that a trial in U.S. District Court was about to commence, wherein a plaintiff was suing Lubbock County for injuries allegedly sustained at the Lubbock County Jail.
(6) A May 5, 2000 article from the Lubbock Avalanche-Journal, reporting that the Fifth Circuit Court of Appeals vacated a 1998 Order by this Court which had granted summary judgment in favor of Lubbock County in a case in which a plaintiff alleged excessive force.
(7) An October 30, 1998 article from the Lubbock Avalanche-Journal, reporting that two former sheriff's deputies were indicted by a Lubbock grand jury for the charge of theft by a public servant.
(8) A June 17, 1999 article from the Lubbock Avalanche-Journal, reporting that a Lubbock County jail employee was arrested on charges of engaging in a sexual relationship with a female inmate.
(9) A June 24, 1999 article from the Lubbock Avalanche-Journal, reporting that a former Lubbock County jail employee had been arrested on charges of buying marijuana he intended to sell to jail inmates.
(10) A July 25, 2000 article from the Lubbock Avalanche-Journal, reporting that Lubbock County Commissioners had approved a settlement of claims for an individual who alleged a jailer had sexual relations with her while she was an inmate, and that the County's reason for the settlement was "solely for the purpose of avoiding significant attorneys' fees and other significant litigation expenses."
(11) An October 25, 1998 article from the Lubbock Avalanche-Journal, reporting that two candidates for the office of Lubbock County Sheriff were "promising big changes next year."
(12) An unauthenticated document containing the subheadings "T. Use of Force" and "U. Use of Weapons."
(13) An unauthenticated document titled "Use of Force in Jail."
In the fairy tale world of Joseph L. Lanza, counsel who signed Plaintiff's Supplemental Response, this document goes to prove "the association was afraid to insure the county because a pattern had developed over the years whereby inmates and detainees in custody at the jail were abused by members of the Lubbock County Sheriff's Department." In the real world, however, the document does not even come close to what Mr. Lanza purports the document to say. According to the article, "Cris Faught, a representative of the Texas Association of Counties, said the insurance wasn't offered to Lubbock County in the past for `various reasons.'" The Court finds this to be just one more example of Mr. Lanza's ongoing practice of creating evidence when it is convenient to do so.
The article is undated, although a hand-written date on the document identifies it as from "12/16/96."
Plaintiff has failed to present any summary judgment evidence that he was injured as a result of the allegedly illegal piddler program.
The article is undated, although a hand-written date on the document identifies it as from "10/21/97."
The summary judgment evidence is clear that Johnson was held on bail, and in fact remained in jail because he was unable to post bail. Whether this evidence is relevant as some sort of equal protection argument that Johnson should have been let out of jail on personal recognizance remains to be seen.
Although Johnson's Complaint includes a litany of charges against the Defendants, he did not file a claim against Lubbock County for retaliatory discharge from employment. For that matter, the Court has been unable to find any evidence that he was required to work with cleaning chemicals.
Despite Johnson's spin on the article for the conclusion that pretrial detainee Njie "was beaten," the Court takes judicial notice of the fact that the jury returned a verdict in favor of Lubbock County and the other defendants in Njie v. Keesee, et al., 5:97-CV-074 (N D. Tex.) The Fifth Circuit Court of Appeals affirmed the judgment of this Court, and the case has become final for all purposes.
The Court takes judicial notice that in this case, Slaughter v. Shackelford, et al., 5:97-CV-291 (N.D. Tex.), the case was remanded to this Court, wherein after a bench trial, judgment was entered in favor of Lubbock County and the other defendants. This case has become final for all purposes.
Counsel concludes that the two deputies "stole money from the Lubbock County Jail's inmate trust account. . . ." Certainly an attorney from a criminal defense firm as notable as Richard Haynes and Associates should understand that an indictment is not evidence of guilt!
No allegations have been made of any inappropriate sexual conduct between Johnson and any of the jailers in this case.
Johnson has presented no claims that he was involved in any alleged illegal transactions of controlled substances while a pretrial detainee.
(14) An unauthenticated document titled "Reports."
(15) An unauthenticated document that appears to be an incident report filed by Defendant Welborn regarding the April 30, 1998 incident with Johnson.
(16) An unauthenticated document that appears to be an incident report filed by Defendant Ray regarding the April 30, 1998 incident with Johnson.
(17) An unauthenticated document that begins with "The Medical staff. . . ."
(18) An unauthenticated document titled Inmate Request for Medical Attention, dated in the "Assessment Notes (Nurse)" section as March 12, 1998. The patient is identified as Ollie Johnson.
(19) An unauthenticated document titled Mental Disability / Suicide Intake Screening, dated March 12, 1998, for Ollie Johnson.
(20) An unauthenticated document titled Inmate Request for Medical Attention (the date is illegible). The patient is identified as Ollie Johnson.
(21) An unauthenticated document titled Discharge Summary for Ollie Johnson, detailing his admission at some health care facility in March of 1997.
(22) An unauthenticated document titled Inmate Request for Medical Attention, dated April 30, 1998. The patient is identified as Ollie Johnson.
(23) An unauthenticated document titled Inmate Request for Medical Attention, dated in the "Assessment Notes (Nurse)" section as May 1, 1998. The patient is identified as Ollie Johnson.
(24) An unauthenticated document titled Inmate Request for Medical Attention, dated in the "Assessment Notes (Nurse)" section as May 1, 1998. The patient is identified as Ollie Johnson.
(25) Another unauthenticated document titled Inmate Request for Medical Attention, dated May 19, 1998. The patient is identified as Ollie Johnson.
(26) An unauthenticated document titled Inmate Request for Medical Attention, dated May 30, 1998. The patient is identified as Ollie Johnson.
(27) An unauthenticated document titled "Rules of the Jail."
(28) An unauthenticated document titled "Proposed Policy Regarding the Use of the Jail Library."
(29) An unauthenticated document titled "Offense / Incident Report," which appears to be dated May 21, 1998, regarding Johnson's use of the law library.
(30) An document titled "Defendant[']s Motion to Dismiss" in a case styled "State of Texas vs. Ollie F. Johnson."
The relevant summary judgment evidence submitted by the Plaintiff indicates that two other lawsuits have been brought against Lubbock County for excessive use of force. The Court finds such evidence to be insufficient to establish any pattern of excessive force at the Lubbock County Jail. Newspaper reports that lawsuits were filed are merely allegations of excessive use of force; they are not sufficient to show that any pattern of wrongful conduct has indeed occurred.
At best, the evidence taken as a whole may also show that Defendant Barnes received a copy of the incident report by Defendants Welborn and Ray and that he did not then review a videotape of the alleged events. From this evidence, Plaintiff then takes a leap into the unknown with the conclusion:
The videotape has now been produced to the Court for review; the Court has reviewed the videotape and finds that the tape shows no evidence of any illegal conduct. Therefore, the Court is unsure just what "blind eye" Defendant Barnes had allegedly turned to the allegedly illegal actions taken by anyone at the Lubbock County Jail when allegedly refusing to review the videotape.
[S]ince [Defendant Barnes] had to report these activities to his superiors, the other Command Staff Defendants, it seems reasonable to conclude that the Command Staff Defendants knew about, and in fact ratified the actions of the offending Deputy Defendants, since they took no steps whatsoever to either investigate, corroborate, or ascertain the truth or veracity of the actions taken by the offending Deputy Defendants.
The Court finds such evidence to be insufficient to establish the Supervisory Defendants' liability. To apply Plaintiff's conspiracy theory logic to a fifth grade syllogism, one would read: (1) Many people have alleged to NASA that the moon is made of green cheese; (2) NASA has never verified those claims; (3) NASA, as an agency of the Executive Branch of government, reports to the President; (4) Certainly, then, the President is aware that the moon is made of green cheese. Plaintiff's summary judgment evidence, complete with reasoning found only in Oliver Stone movies, is obviously insufficient to raise a genuine issue as to any material fact that any of the supervisory officials had any involvement or knowledge whatsoever about the alleged beating involving Plaintiff Johnson. Furthermore, the Plaintiff's allegation of other misconduct at the Lubbock County Jail is insufficient as a matter of law to establish a pattern of (1) excessive force with regard to pretrial detainees at the jail; (2) denial of access to the law library; (3) proper handling of medical requests; (4) improper medical care; or (5) preventing the filing of false charges and fabricating evidence.
Although this claim was never discussed in Plaintiff's Response and was addressed in only one paragraph in Plaintiff's Supplemental Response, Johnson did allege that these Defendants "knowingly and intentionally denied a civil liberty to a disabled person, thereby continuing the pattern of harassment against an detainee [sic] who was illegally incarcerated." Defendants present summary judgment evidence that Defendant Mclnroe delivered cases and materials to Plaintiff's cell. In light of this accommodation, Plaintiff has not shown any constitutional violation in not being able to physically visit the library at will See Eason v. Phaler, 73 F.3d 1322, 1328-29 (5th Cir. 1996) ("[T]o make out a claim that his constitutional right of access to the courts has been violated, [the Plaintiff] must have demonstrated that his position as a litigant was prejudiced by his denial of access to the courts.") (Alterations added; citations omitted).
To the extent that Plaintiff presents admissible summary judgment evidence that Defendants "knew, or certainly should have known" of Plaintiffs pre-existing knee injury, the Court finds that such evidence is not sufficient to hold such Defendants liable, given the stringent standards for supervisory liability under § 1983.
The Court finds that Johnson has failed to provide summary judgment evidence sufficient to attribute liability to the Supervisory Defendants or to prove that any of these Defendants acted with subjective, deliberate indifference to the rights of the Plaintiff. Furthermore, the Court finds no evidence that these Defendants acted unreasonably under the circumstances. For these reasons, the Court GRANTS the Supervisory Defendants' Motions for Summary Judgment in their entirety. D. Section 1983 Claims Against Defendant Mitchell
Plaintiff further alleges that Defendant Mitchell prevented Johnson from viewing the videotape that allegedly recorded the images of Johnson being beaten by the Deputy Defendants. According to Johnson, Sergeant Robert Campbell informed Johnson that Mitchell was going to "push it," meaning conceal the evidence. Johnson also alleges that Defendant Mitchell prevented Defendant Mclnroe from providing, Johnson access to the law library. Because the Court has found, above, that the alleged denial to the law library did not rise to a constitutional violation due to the fact that Johnson had access to materials through Defendant Mclnroe, the Court finds that Defendant Mitchell is likewise entitled to summary judgment.
Defendant Mitchell presents summary judgment evidence that he was not present during the alleged beating or the alleged filing of false charges upon Johnson, nor does he have any knowledge of such incidents. Defendant Mitchell is only mentioned one specific time in Plaintiff's Response, in which the Plaintiff states, "The affidavit of Mr. Johnson and Anthony Griffin establish that Mitchell attempted to conceal the evidence of Plaintiff's beating." According to Johnson's affidavit:
44. On May 25, 1998, Sergeant Robert Campbell came to my cell and told me, basically, that because he knew me, he knew I would not behave as Corporal Welborn and Deputy Ray had charged and that he did not believe their version of events. Sergeant Campbell further told me that he knew a videotape existed and that he would look at the videotape himself. Sergeant Campbell made these statements in front of inmates Charles Wesley Thomas ("Cricket") and Robert Perez.
45. On June 1 or 2, 1998, in the commissary, Sergeant Campbell again approached me and, while in the presence of inmates Cricket and Perez, as well as inmate Anthony Griffin, stated that Jail Administrator Mitchell would not let him look at the videotape and that he [Jail Administrator Mitchell] was going to "push" it, meaning conceal the videotape.
(Alterations in original). Anthony Griffin's affidavit is similar in nature: "On or about month [sic] 2nd day [of] June of 1998, [I] Heard Sgt. Campbell say to Ollie Johnson while in [the] commissary that Jack Mitchell was going to try and push his case — that is all I heard. . . ."
On February 27, 2001, Defendant Mitchell filed Objections and Motion to Strike Plaintiff's Affidavits Submitted in Response to Defendant[']s Motion for Summary Judgment. This document argues that such statements by Johnson and Griffin are inadmissible hearsay. Johnson filed no response to Defendant Mitchell's objections. Rule 801(c), FED. R. EVID., defines "hearsay" as "a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted." Johnson is attempting to use Sergeant Campbell's out-of-court statement to prove the truth of its matter: that is, to prove that Mitchell was indeed going to conceal the videotape. The Court finds no provision that makes such a statement non-hearsay or that such statement falls into one of the applicable hearsay exceptions. This Court finds the portions of the affidavits from Johnson and Griffin to be inadmissible hearsay, and SUSTAINS Mitchell's objections to such summary judgment evidence.
The Court, finding that the remaining allegations against Defendant Mitchell are virtually identical to those made against the other Supervisory Defendants, finds that Defendant Mitchell's Motion for Summary Judgment should be GRANTED for the reasons set forth above. The Court finds that Johnson has failed to provide summary judgment evidence sufficient to attribute liability to Mitchell or to prove that Mitchell acted with subjective, deliberate indifference to the rights of the Plaintiff. Furthermore, the Court finds no evidence that Mitchell acted unreasonably under the circumstances.
E. Section 1983 Claims Against Defendants Flores. Head. Kitten, and Maines
Plaintiff generally alleges in his Complaint that Defendants Flores, Head, Kitten, and Maines, as Lubbock County Commissioners, are liable under Section 1983. These Defendants have moved for summary judgment, asserting the defense of qualified immunity.
In his Response to the Commissioners' Motion, Johnson's only allegations regarding the Commissioners are thus:
14. Reverend McDonald then negotiated with the County Commissioners for Johnson's release. The "price" for Mr. Johnson's freedom was he would have to release Lubbock County from the civil rights claims that arising [sic] out of its mistreatment of him while in its custody. (Plaintiff's App.; Tab 1 ¶ 65.) All during this negotiation process, the County Commissioners, through Reverend McDonald, intimidated Mr. Johnson and caused him not to obtain independent legal counsel in connection with these criminal charges and this civil settlement. During this process, the County Commissioners were aware, through Reverend McDonald, of the District Attorney's efforts to obtain a life sentence against Mr. Johnson of the trumped up charges filed by the Guards.
15. This course of conduct violated Mr. Johnson's right to counsel as provided for by the Sixth Amendment to the United States Constitution and the Due Process Clause of the Fourteenth Amendment of the United States Constitution. These rights are clearly established. Furthermore, the County Commissioners['] conduct was objectively unreasonable. Therefore, their request for summary judgment based on qualified immunity should be denied.
(Citation in original). The fact is clear, however, that Johnson had court-appointed counsel to represent him in the criminal charges against him. Other than Johnson's affidavit, consisting entirely of hearsay statements of what Defendant McDonald told him, Johnson is unable to provide any summary judgment evidence showing personal knowledge that creates even an inference that Lubbock County Commissioners "knew" that Johnson would have to release Lubbock County from his civil rights claims in order to be released from jail, that the Lubbock County Commissioners intimidated Johnson, or that the Commissioners were aware that the District Attorney planned to obtain a life sentence against Johnson. Furthermore, Plaintiff fails to establish any constitutional deprivation necessary for a § 1983 claim because Plaintiff has not sued any Defendant under the Sixth Amendment to the United States Constitution. In short, Plaintiff's claims against the County Commissioners do not even come close to surviving summary judgment. After reviewing the admissible, relevant, summary judgment evidence, the Court finds that Johnson has failed to allege a violation of a clearly established constitutional right against the Lubbock County Commissioners. Summary judgment is GRANTED.
This is the essence of the Commissioners' Motion to Strike and Objections to Plaintiff's Affidavit, filed February 27, 2001. Defendants' objections are SUSTAINED as they pertain to Johnson's remarks regarding what Defendant McDonald told him about discussions with the County Commissioners.
To the extent Plaintiff intends to claim a Sixth Amendment violation because the Commissioners' somehow withheld access to counsel to represent Johnson in his civil claims against Lubbock County, the Court finds Plaintiff's argument to be patently frivolous. The Fifth Circuit has held on numerous occasions that "the sixth amendment right to effective assistance of counsel does not apply to civil litigation." Sanchez v. U.S. Postal Serv., 785 F.2d 1236, 1236 (5th Cir. 1986) (citing United States v. White, 589 F.2d 1283, 1285 n. 4 (5th Cir. 1979); United States v. Rogers, 534 F.2d 1134 (5th Cir.), cert. denied, 429 U.S. 940 (1976)).
III. CONCLUSION
For the reasons set forth above, the Court makes the following findings:The Motion for Summary Judgment of Defendants Hendrick, Lewis, Lilley, Ray, and Welborn [Docket entry number 53] is DENIED.
The Sheriff's Department Supervisors' Motion to Strike [Docket entry numbers 86 and 106] is GRANTED, and the Objections are SUSTAINED.
The Motions for Summary Judgment of Defendants Barnes [Docket entry number 61], Bartley [Docket entry number 63], Mclnroe [Docket entry number 67], and Scarborough [Docket entry number 65] are GRANTED.
The Motions for Summary Judgment of Defendants Cowan and Sowder [Docket entry number 69] are DENIED AS MOOT.
Defendants Mitchell and the Lubbock County Commissioners' Motions to Strike [Docket entry numbers 89 and 91] are GRANTED, and the Objections are SUSTAINED.
The Motion for Summary Judgment of Defendant Mitchell [Docket entry number 56] is GRANTED.
The Motion for Summary Judgment of Defendants Flores, Head, Kitten, and Maines [Docket entry number 59] is GRANTED.
All relief not expressly granted is denied.
SO ORDERED