Opinion
Civil Action No. 3:02-CV-1825-L.
November 12, 2004
ORDER
Before the court are Defendants City of Waxahachie, Texas, John Pillow, Damon James and Robert Nelson's Motion for Summary Judgment, filed August 5, 2004; and Defendants' Motion to Strike Plaintiff's Summary Judgment Evidence, filed September 17, 2004. After careful consideration of the motions, response, reply, competent summary judgment evidence, record and applicable law, the court grants Defendants City of Waxahachie, Texas, John Pillow, Damon James and Robert Nelson's Motion for Summary Judgment; and denies as moot Defendants' Motion to Strike Plaintiff's Summary Judgment Evidence.
I. Factual and Procedural Background
Plaintiff Bobby Charles Jones ("Jones" or "Plaintiff") filed this action on August 23, 2002, against Jay Pillow ("Pillow"), Damon James ("James"), Robert Nelson ("Nelson"), City of Waxahachie, Texas ("City") and Ellis County, Texas ("County") (collectively referred to as "Defendants"), pursuant to 42 U.S.C. §§ 1983 and 1988, and the Fourth and Fourteenth Amendments to the United States Constitution. He contends that Defendants violated his constitutional rights by subjecting him to unreasonable search of his home, unreasonable search and seizure of his person, excessive force, and illegal prosecution. Plaintiff also contends that Defendants violated state law by subjecting him to assault and battery, false arrest and illegal imprisonment, malicious prosecution, illegal search, and trespass.
The County was dismissed from this action with prejudice pursuant to a stipulation of dismissal filed by the parties on May 18, 2004.
Defendants contend that Jones's claims are barred by the applicable statutes of limitations. Defendants also contend that Jones has failed to state a claim for illegal or baseless prosecution for assault. The City contends that Jones cannot establish that his injuries were the result of a custom, policy, or practice of the City under the "deliberate indifference" standard, or the "failure to train or supervise" standard. The individual Defendants contend that they are entitled to qualified immunity with regard to all of Plaintiff's § 1983 claims.
Defendants have filed a motion for summary judgment and contend that no genuine issue of material fact exists with respect to any of Jones's asserted claims, and that they are therefore entitled to judgment as a matter of law. Jones, on the other hand, contends that he has set forth facts which preclude the granting of summary judgment in favor of Defendants, and requests the court to deny the summary judgment motion and allow the case to proceed to trial. The court now sets forth the facts on which it relies to resolve the summary judgment motion. In setting forth the facts, the court applies the summary judgment standard as set forth in the following section.
The parties disagree on some key facts surrounding the incident giving rise to this action. On December 8, 1999, at approximately 6:56 a.m., the Waxahachie police department dispatched Nelson, James and Pillow to investigate a 911 call which reported an assault occurring at Jones's home at 205 Wilmington in the City. The Waxahachie Police Department had responded to a previous domestic disturbance call from the residence prior to December 8, 1999, that involved Jones and Jeanie Middlestead ("Middlestead"), Jones's girlfriend.
Nelson and James arrived at the scene first. They state that as they approached the residence they heard loud and heated conversation with yelling and crying coming from the left front bedroom. Nelson states that he heard a female voice pleading "Stop!" They further state that they heard sounds of a struggle inside the house. Pillow, who followed the officers to the scene, describes hearing "skin-on-skin" contact from inside the house and loud noises consistent with a disturbance. He states it sounded like an assault was taking place. Nelson says he announced "police department" and knocked on the front door while James and Pillow positioned themselves at the nearby sliding glass door to the bedroom. There was no response to Nelson's knocking. James informed Nelson that Jones had come to the sliding glass door. After Jones opened the sliding glass door, James states that four times he directed him to step outside but Jones refused. James further states that Jones began to move back into the room. According to James, he moved towards Jones and continued to seek Jones's compliance to exit the house. He states that at that time he observed a rifle and a bat lying on the floor near the door. James further states that because of the uncertainty of the situation and because the weapons were within Jones's reach, he sprayed pepper spray in Jones's face. Jones fell to his knees. James and Nelson took Jones down to the floor and placed handcuffs on him. They state that Jones offered no resistance. They then assisted Jones to his feet and took him outside. They seated him in the driveway and placed him in Pillow's custody. Thereafter, the officers determined that Middlestead was in the house.
Jones disputes Defendants' version of the incident, and states that he heard someone outside his home beating on his front and sliding glass doors and yelling, "Open the door!" The sliding glass door is also located at the front of the house. Jones states that he opened the sliding glass door and saw Pillow, James and Nelson. Jones further states that after opening the sliding glass door, he yelled "Hey!" to get the officers attention, then backed away. He states that without warning James forced his arm, hand and body through the sliding glass door and into the home and then sprayed pepper spray in his face. According to Jones, he fell to his knees, and James and Pillow violently grabbed his left arm and forced him to the floor face down. Jones states that his head struck the floor and that one of the officers struck his head with the officer's knee, while the other forced his arms and hands behind his back and handcuffed him. He states that Nelson entered his home and escorted him out of the house.
Nelson and James spoke with Middlestead inside the house. They state that she appeared visibly shaken and was crying. They also state that they observed redness around her neck and on her face. Pillow further states that he also saw Middlestead and saw scratches on her face and neck.
Jones was arrested on a charge of Class A misdemeanor assault and family violence. He was taken to the Waxahachie city jail and booked at 7:18 a.m. He appeared before a municipal judge, at which time he was charged. He was transferred to the county jail where he was informed that bail had been arranged for him. He was released at 8:40 a.m.
Jones avers that he sustained an injury to his left shoulder and neck at the time of his arrest. He sought medical treatment for his shoulder and neck injuries in March 2000. He underwent surgery in April 2000 for arthroscopic rotator cuff repair, and for cervical decompression and fusion in May 2001.
The Ellis County district attorney filed an assault information with the county clerk on January 3, 2000, stating that Jones intentionally caused bodily harm to Middlestead. The criminal case against Jones was tried to a jury, and he was acquitted on August 24, 2000. Jones filed this lawsuit on August 23, 2002. Defendants filed a motion for summary judgment. The court now considers this motion.
II. Summary Judgment Standard
Summary judgment shall be rendered when the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, 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. Fed.R.Civ.P. 56(©)); Celotex Corp. v. Catrett, 477 U.S. 317, 323-25 (1986); Ragas v. Tennessee Gas Pipeline Co., 136 F.3d 455, 458 (5th Cir. 1998). A dispute regarding a material fact is "genuine" if the evidence is such that a reasonable jury could return a verdict in favor of the nonmoving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). When ruling on a motion for summary judgment, the court is required to view all inferences drawn from the factual record in the light most favorable to the nonmoving party. Matsushita Elec. Indus. Co. v. Zenith Radio, 475 U.S. 574, 587 (1986); Ragas, 136 F.3d at 458. Further, a court "may not make credibility determinations or weigh the evidence" in ruling on motion for summary judgment. Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 150 (2000); Anderson, 477 U.S. at 254-55.
Once the moving party has made an initial showing that there is no evidence to support the nonmoving party's case, the party opposing the motion must come forward with competent summary judgment evidence of the existence of a genuine fact issue. Matsushita, 475 U.S. at 586. Mere conclusory allegations are not competent summary judgment evidence, and thus are insufficient to defeat a motion for summary judgment. Eason v. Thaler, 73 F.3d 1322, 1325 (5th Cir. 1996). Unsubstantiated assertions, improbable inferences, and unsupported speculation are not competent summary judgment evidence. See Forsyth v. Barr, 19 F.3d 1527, 1533 (5th Cir.), cert. denied, 513 U.S. 871 (1994). The 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 claim. Ragas, 136 F.3d at 458. Rule 56 does not impose a duty on the court to "sift through the record in search of evidence" to support the nonmovant's opposition to the motion for summary judgment. Id.; see also Skotak v. Tenneco Resins, Inc., 953 F.2d 909, 915-16 n. 7 (5th Cir.), cert. denied, 506 U.S. 832 (1992). "Only disputes over facts that might affect the outcome of the suit under the governing laws will properly preclude the entry of summary judgment." Anderson, 477 U.S. at 248. Disputed fact issues which are "irrelevant and unnecessary" will not be considered by a court in ruling on a summary judgment motion. Id. If the nonmoving party fails to make a showing sufficient to establish the existence of an element essential to its case and on which it will bear the burden of proof at trial, summary judgment must be granted. Celotex, 477 U.S. at 322-23.
III. Analysis
A. Statutes of Limitations
1. Plaintiff's federal claims
Defendants contend that Jones's claims of excessive force, unreasonable search, unreasonable seizure, and unlawful entry are barred by the Texas two-year statute of limitations made applicable to § 1983 claims by federal common law. The court agrees as to Jones's excessive force, unreasonable search and unlawful entry claims, and, therefore, even if these claims survive on the merits, they are barred by the applicable statutes of limitations. The court disagrees that Jones's claim of unreasonable seizure is barred by the applicable statute of limitations.
There is no federal statute of limitations for a § 1983 claim. The federal courts thus use the forum state's personal injury statute of limitations. See Piotrowski v. City of Houston, 237 F.3d 567, 576 (5th Cir. 2001). Texas has a two-year statute of limitations for personal injury claims. Tex. Civ. Prac. Rem. Code Ann. § 16.003(a) (Vernon 2002). The Fifth Circuit has applied this statute of limitations to § 1983 claims. See Gonzales v. Wyatt, 157 F.3d 1016, 1020 (5th Cir. 1998). Thus, Jones had two years to file suit from the date his claims accrued. Although state law governs the limitations period, federal law governs when a § 1983 claim accrues. Piotrowski, 237 F.3d at 576.
Under federal law, the limitations period begins to run the moment the plaintiff becomes aware that [she] has suffered an injury or has sufficient information to know that [she] has been injured. A plaintiff's awareness encompasses two elements: (1) The existence of the injury; and (2) causation, that is, the connection between the injury and the defendant's actions. A plaintiff need not know that she has a legal cause of action; she need know only the facts that would ultimately support a claim. Actual knowledge is not required if the circumstances would lead a reasonable person to investigate further.Id. (citations and internal quotation marks omitted).
Jones contends that under Heck v. Humphrey, 512 U.S. 477 (1994), his § 1983 claims did not accrue until he was acquitted on August 24, 2002. The Supreme Court ruled in Heck that a § 1983 claim that effectively attacks the constitutionality of a conviction or imprisonment does not accrue until that conviction or sentence has been "reversed on direct appeal, expunged by executive order, declared invalid by a state tribunal authorized to make such determination, or called into question by a federal court's issuance of a writ of habeas corpus." Id. at 487. Jones rationalizes that his claims could not accrue until after he was acquitted because had he prevailed on his § 1983 claims prior to a legal ruling on his assault case, there is an implication that a future conviction for assault would be invalid. He further cites to an Eleventh Circuit case for the proposition that, because his excessive force claim would not have occurred but for an illegal arrest or stop, the damages that result from the use of excessive force are submitted in the claim for the arrest or stop. See Jackson v. Sauls, 206 F.3d 1156 (11th Cir. 2000). Jones contends that the Fifth Circuit "appears to be in accord" with Jackson in its rulings in Hudson v. Hughes, 98 F.3d 868 (5th Cir. 1996); and Hamilton v. Lyons, 74 F.3d 99 (5th Cir. 1996).
The court disagrees that the two Fifth Circuit cases cited by Jones are in accord with the Eleventh Circuit's holding in Jackson v. Sauls. In Jackson, the Eleventh Circuit held that under its law "a claim that any force during a false arrest is excessive is subsumed in the false arrest claim itself because damages for false arrest include damages for use of force to effect that false arrest." Id. at 1171 (citations omitted). The Fifth Circuit, however, has not adopted this strict rule. Instead, as outlined in Hudson v. Hughes, 98 F.3d 868 (5th Cir. 1996), the court has held that a § 1983 action "may be entertained, therefore, only if the court determines that holding in [the plaintiff's] favor will not necessarily call into question the validity of his convictions." Hudson at 872. Further, in Hamilton v. Lyons, 74 F.3d 99 (5th Cir. 1996), also cited by Jones, the Fifth Circuit stated that a § 1983 claim "falls under the rule in Heck only when a judgment in favor of the plaintiff would necessarily imply the invalidity of a subsequent conviction or sentence. Therefore, we must first consider whether a judgment in favor of [plaintiff] on any of his claims would necessarily imply the invalidity of his convictions or sentences." Id. at 102-03.
Jackson is not from the Fifth Circuit and, of course, is not binding on this court.
a. Unreasonable search and excessive force
Applying the test outlined in Hudson and Hamilton, the court concludes that Jones was not precluded by Heck from bringing his claims of unreasonable search and excessive force prior to resolution of his criminal case. The alleged assault of Middlestead case stands alone, independent of any constitutional impropriety. The force or search, therefore, would not even marginally call into question Jones's conviction for assaulting Middlestead. The alleged assault against Middlestead had already occurred prior to any use of force or search, and thus becomes totally irrelevant to the constitutional validity of any conviction of Jones for assaulting Middlestead. Further, Jones's excessive force claim centers on whether the officers used an unreasonable amount of force to effect the arrest, as opposed to whether he assaulted Middlestead. Likewise, his unreasonable search claim centers on whether the officers acted reasonably in conducting a protective search of his person, and is independent of the assault charge. Additionally, there were no fruits from the search used against Jones for allegedly assaulting Middlestead. Therefore, Heck is inapplicable to these claims because the elements Jones would have to prove would not negate the elements of his arrest for assault. See Heck, 512 U.S. at 487. Therefore, since Jones was not barred from bringing his unreasonable search and excessive force claims until his criminal proceedings had ended, they accrued when he was arrested on December 8, 1999. The two-year statute of limitations is applicable to these claims. Jones filed this action on August 23, 2002, well over two years after the cause of action accrued regarding these two claims. Jones's unreasonable search and excessive force claims are thus barred by the applicable two-year statute of limitations, and the court need not address the merits of these claims. Defendants are entitled to summary judgment on these claims.
In the Fifth Circuit, to succeed on an excessive force claim, the plaintiff bears the burden of showing: "(1) an injury (2) which resulted directly and only from the use of force that was clearly excessive to the need and (3) the force used was objectively unreasonable." Williams v. Bramer, 180 F.3d 699, 703 (5th Cir. 1999).
See Terry v. Ohio, 392 U.S. 1 (1968); Ybarra v. Illinois, 444 U.S. 88 (1979).
b. Unreasonable seizure
The court interprets Jones's § 1983 claim of unreasonable seizure of his person as an allegation that his detention and arrest were unreasonable because there was no probable cause or other authority for the officers to seize custody of him. Obviously, this claim goes directly to the constitutionality and validity of Jones's conviction for assault. This is so because an illegal arrest would necessarily undermine the validity of any possible conviction for an assault against Middlestead. Under the Heck rule, this claim did not accrue until Jones was acquitted on August 24, 2000, of the assault charge. See id. at 487. This claim is not barred by the two-year statute of limitations because Jones filed this action on August 23, 2002, one day before the statute expired. The court will address later the merits of this claim and Defendants' qualified immunity defense below.
c. Malicious prosecution
Jones contends that he was subjected to an illegal and baseless prosecution for assault. For purposes of this action, the court considers this to be a claim of malicious prosecution. Defendants maintain that this claim is also barred by the applicable statute of limitations. The Texas statute of limitations for malicious prosecution is one year after the cause of action accrues. Tex. Civ. Prac. Rem. Code § 16.002(a) (Vernon 2002). The Texas statute of limitations for personal injuries in general, however, is two years. Id. at § 16.003. The Supreme Court has held that where a state provides multiple statutes of limitations for personal injury actions, courts considering § 1983 claims should borrow the state's residual" or "general" personal injury limitations period rather than the prescriptive period for enumerated intentional torts. Owens v. Okure, 488 U.S. 235, 249-50 (1989). The Fifth Circuit has adopted the Okure rule for § 1983 claims. See Elzy v. Roberson, 868 F.2d 793, 794 (5th Cir. 1989).
Jones's cause of action for malicious prosecution did not accrue until he was acquitted on August 24, 2000. Jones filed this action on August 23, 2002. The court, therefore, determines that Jones's malicious prosecution claim under § 1983 is not barred by the applicable two-year statute of limitations. Defendants' motion for summary judgment as to this claim based on statute of limitations is denied. The court will later address the merits of this claim.
2. Plaintiff's state law claim
Defendants contend that Jones's state law causes of action for assault and battery, false arrest, illegal imprisonment, malicious prosecution, and illegal search/trespass are barred by the Texas one- and two-year statutes of limitations. The court agrees, and Defendants are entitled to summary judgment on these claims.
a. Assault and battery, false arrest, illegal imprisonment, and illegal search/trespass
Under Texas law, a person must bring suit for trespass and personal injury no later than two years after the day the cause of action accrues. Tex. Civ. Prac. Rem. Code § 16.003(a) (Vernon 2002). See Childs v. Haussecker, 974 S.W.2d 31, 36 (Tex. 1998). Because § 16.003(a) does not define the accrual date, the courts must determine the accrual date for limitations purposes. Id.; S.V. v. R.V., 933 S.W.2d 1, 4 (Tex. 1996). A cause of action generally accrues when a wrongful act causes a legal injury, regardless of when the plaintiff discovers the injury or if all resulting damages have not yet occurred. Id. Courts apply the discovery exception only "when the nature of the injury incurred is inherently undiscoverable and the evidence of injury is objectively verifiable." Childs, 974 S.W.2d at 36-37. Therefore, Jones's cause of action for assault and battery, false arrest, illegal imprisonment, and illegal search/trespass accrued on December 8, 1999, the date of his arrest. As the court noted above, Jones filed this action on August 23, 2002, more than two years after the cause of action accrued. Thus, Jones's state law claims of assault and battery, false arrest, illegal imprisonment, and illegal search/trespass are barred by the two-year statute of limitations, and Defendants are entitled summary judgment on these claims.
b. Malicious prosecution
Jones's state law claim for malicious prosecution is also barred by the statute of limitations. Pursuant to Tex. Civ. Prac. Rem. Code § 16.002 (Vernon 2002), a person must bring suit for malicious prosecution not later than one year after the day the cause of action accrues. The action accrues upon termination of criminal prosecution. Leal v. American Nat. Ins. Co., 928 S.W.2d 592, 596 (Tex.App.-Corpus Christi 1996, writ denied). Because Jones was acquitted on August 24, 2000, but did not file his lawsuit until August 23, 2002, this claim is barred by the one-year statute of limitations. Defendants thus are entitled to summary judgment on this claim.
B. Plaintiff's § 1983 Illegal or Baseless Prosecution Claim
Plaintiff contends that he was prosecuted illegally or without any basis because an officer's affidavit in support of prosecution was not presented to a neutral and detached magistrate for a probable cause determination prior to prosecution. Defendants, on the other hand, contend that Jones's claim should be dismissed because there is no basis in fact or law for such a claim under the Fourth Amendment. The court agrees. Jones's claim appears to be based on Gerstein v. Pugh, 420 U.S. 103 (1975), which held that "a state must provide a fair and reliable determination of probable cause as a condition for any significant pretrial restraint of liberty and this determination must be made by a judicial officer either before or promptly after arrest." Id. at 125. The Court clarified in County of Riverside v. McLaughlin, 500 U.S. 44 (1991), that its articulation in Gerstein that a probable cause hearing must be "prompt," did not mean "immediate." Id. at 54. "[W]e believe that a jurisdiction that provides judicial determination of probable cause within 48 hours of arrest will, as a general matter, comply with the promptness requirement of Gerstein." Id. at 56.
The Court noted that even if a probable cause determination is provided within 48 hours, that does not mean that a particular case passes constitutional muster. Such a probable cause determination may nonetheless violate Gerstein if the arrested individual can prove that his or her probable cause determination was delayed unreasonably. County of Riverside, 500 U.S. at 56.
What took place in this case violated neither Gerstein nor County of Riverside. Jones was only detained for approximately one hour and twenty-two minutes, at which time he was released on bail. It is fatuous to contend that an hour and twenty-two minutes constitutes an extended restraint of Jones's liberty under the facts of this case, or that the 82-minute restraint was unreasonable under the circumstances. He was released well within 48 hours. The court can think of no reason why a stay in custody of less than 90 minutes would constitute an extended restraint of Jones's liberty, and Jones has produced none. The court determines as a matter of law that an hour and twenty-two minutes was not a significant or extended restraint of Jones's liberty and, therefore, no probable cause determination by a judicial officer was required.
Since Jones was only detained for one hour and twenty-two minutes, he has failed to allege or establish a Fourth Amendment violation. In any event, the Fifth Circuit has concluded that malicious prosecution "standing alone is no violation of the United States Constitution." Castellano v. Fragozo, 352 F.3d 939, 942 (5th Cir. 2003). This serves as an alternative basis for denying Jones's claim of illegal or baseless prosecution. For these reasons, there are no genuine issues of material fact as to Plaintiff's claim of illegal or baseless prosecution, and Defendants are entitled to judgment as a matter of law.
C. Plaintiff's § 1983 Unreasonable Seizure Claim
The court now addresses Jones's remaining § 1983 claim of unreasonable seizure of his person. Upon reviewing all the evidence, the court must determine whether probable cause existed for the officers to arrest Jones for assault. In making this determination, the court states the facts in the light most favorable to Jones and those that are undisputed. The officers were dispatched to Jones's residence on a possible assault call. Obviously, someone called the police because the caller believed that an assault or some kind of disturbance was taking place. Upon arrival, the officers heard a female voice yelling "Stop!" Two officers stated that they heard the sounds of a struggle inside the house. One of the officers heard "skin-on-skin" contact. "Skin-on-skin" contact would indicate to any reasonable person that some type of force was being applied, that is, that someone was being struck. Jones does not contradict the officers' version that they heard yelling and crying upon arriving at the location. Further, upon seeing Middlestead, the officers noticed that her face was red and that she had been crying.
Given the collective facts, the court determines that the officers had probable cause to arrest Jones for assaulting Middlestead. Although Middlestead states that she did not want Jones arrested, this is of no moment to the finding of probable cause. This court does not live in a vacuum, and neither do police officers. Police encounters with citizens are replete with instances where the victim of an assault does not desire to have an offender arrested or prosecuted.
As part of his unreasonable seizure claim, Plaintiff contends that no exigent circumstances existed for the police officers to enter his home and arrest him without a warrant. The court disagrees. The "presence of exigent circumstances may justify a warrantless entry into a home for the purposes of arrest," if there is probable cause to believe the suspect has committed a crime. United States v. Vasquez, 953 F.2d 176, 179 (5th Cir. 1992). The Fifth Circuit has held that "[E]xigent circumstances include those in which officers reasonably fear for their safety, where firearms are present, or where there is a risk of a criminal suspect's escaping or fear of destruction of evidence." United States v. Rico, 51 F.3d 495, 501 (5th Cir. 1995). Further, exigent circumstances will generally exist when the safety of the general public is threatened. See Tamez v. City of San Marcos, 118 F.3d 1085, 1093-97 (5th Cir. 1997) (Police responding to a "shots fired" call could reasonably believe the resident of a home was in danger.).
In sum, when the court considers the uncontroverted evidence that: 1) the police department was called regarding an assault or domestic disturbance at Jones's residence; 2) the officers were dispatched to the residence; 3) the police officers heard a female voice yelling "Stop!"; 4) no other female was in the house other than Middlestead; 5) the police officers heard yelling, crying and "skin-on-skin" contact; 6) one officer heard what sounded like a struggle; 7) the police officers observed a rifle and a bat in the residence; 8) the police officers observed that Middlestead's face was red and she had been crying; and 9) the tense and volatile situation between Jones and Middlestead could erupt into further violence, it determines that the officers not only had probable cause to believe an assault was occurring in their presence, but also that exigent circumstances existed for them to enter the residence and detain Jones to ensure their safety and that of Middlestead. Accordingly, there are no genuine issues of material fact as to Plaintiff's claim of unreasonable seizure, and Defendants are entitled to judgment as a matter of law.
D. Qualified Immunity
The court has determined that Pillow, James and Nelson are entitled to summary judgment on the merits on the unreasonable seizure claim; however, even if defendants officers are not entitled to summary judgment on the merits of Plaintiff's unreasonable seizure claim, they are entitled to summary judgment on the basis of qualified immunity.
Government officials who perform discretionary functions are entitled to the defense of qualified immunity, which shields them from suit as well as liability for civil damages, 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 (1982). A defendant official must affirmatively plead the defense of qualified immunity. Gomez v. Toledo, 446 U.S. 635, 640 (1980). Defendant officers have pleaded this defense.
In deciding a motion for summary judgment that raises the defense of qualified immunity, the court must first decide "whether the plaintiff has alleged the deprivation of an actual constitutional right at all, and if so, proceed to determine whether that right was clearly established at the time of the alleged violation." Conn v. Gabbert, 526 U.S. 286, 290 (1999) (citing Siegert v. Gilley, 500 U.S. 226, 232-33 (1991)); see also Kerr v. Lyford, 171 F.3d 330, 339 (5th Cir. 1999). The second prong of the test requires the court to make two separate inquiries: whether the right allegedly violated was clearly established at the time of the event giving rise to the plaintiff's claim, and if so, whether the conduct of the defendant was objectively unreasonable. Evans v. Ball, 168 F.3d 856, 860 (5th Cir. 1999). Although many cases continue to state that the determination of the qualified immunity issue requires the application of a bifurcated test, the analytical framework for resolving issues of qualified immunity necessarily requires, or may require, a three-step analysis. See Kerr v. Lyford, 171 F.3d at 339; Evans v. Ball, 168 F.3d at 860; Hare v. City of Corinth, 135 F.3d 320, 326 (5th Cir. 1998); Eugene v. Alief Indep. Sch. Dist., 65 F.3d 1299, 1305 (5th Cir. 1995), cert. denied, 517 U.S. 1191 (1996).
Whether a defendant acted within the scope of his authority performing a discretionary function and whether a reasonable official in his position would have deemed his conduct unconstitutional are not to be considered by the court unless each part of the three-step inquiry has been answered affirmatively on behalf of the plaintiff. Kerr v. Lyford, 171 F.3d at 339. In other words, only after a plaintiff demonstrates the existence and violation of a clearly established constitutional or statutory right is the defendant required to show that he was performing a discretionary function and that a reasonable official would not have considered his actions to be unconstitutional at the time of the incident in question. Id. at 338.
A right is "clearly established" only when its contours are sufficiently clear that a reasonable public official would have realized or understood that his conduct violated the right in issue, not merely that the conduct was otherwise improper. See Anderson v. Creighton, 483 U.S. 635, 640 (1987); Foster v. City of Lake Jackson, 28 F.3d 425, 429 (5th Cir. 1994). Thus, the right must not only be clearly established in an abstract sense but in a more particularized sense so that it is apparent to the official that his actions [what he is doing] are unlawful in light of pre-existing law. Anderson v. Creighton, 483 U.S. at 640; Stefanoff v. Hays County, 154 F.3d 523, 525 (5th Cir. 1998); and Pierce v. Smith, 117 F.3d 866, 871 (5th Cir. 1997).
In Anderson v. Creighton, 483 U.S. at 641, the Supreme Court refined the qualified immunity standard and held that the relevant question is whether a reasonable officer or public official could have believed that his conduct was lawful in light of clearly established law and the information possessed by him. If public officials or officers of "reasonable competence could disagree [on whether an action is legal], immunity should be recognized." Malley v. Briggs, 475 U.S. 335, 341 (1986); Gibson v. Rich, 44 F.3d 274, 277 (5th Cir. 1995) ( citing Babb v. Dorman, 33 F.3d 472, 477 (5th Cir. 1994)). Qualified immunity is designed to protect from civil liability "all but the plainly incompetent or those who knowingly violate the law." Malley v. Briggs, 475 U.S. at 341. Conversely, an official's conduct is not protected by qualified immunity if, in light of clearly established pre-existing law, it was apparent the conduct, when undertaken, would be a violation of the right at issue. Foster v. City of Lake Jackson, 28 F.3d at 429. To preclude qualified immunity, it is not necessary for a plaintiff to establish that "the [specific] action in question has previously been held unlawful." Anderson v. Creighton, 483 U.S. at 640. For an official, however, to surrender qualified immunity, "pre-existing law must dictate, that is, truly compel (not just suggest or allow or raise a question about), the conclusion for every like-situated, reasonable government agent that what the defendant is doing violates federal law in the circumstances." Pierce v. Smith, 117 F.3d at 882; Stefanoff v. Hays County, 154 F.3d at 525.
Defendants do not challenge the legal sufficiency of Jones's complaint and thus concede that he has alleged the deprivation of an actual constitutional right that was clearly established at the time of the event giving rise to the claim. Thus, the issue before the court is whether Defendants' conduct was objectively unreasonable. The individual Defendants contend that their actions in arresting Jones were objectively reasonable in light of the prevailing law. Defendants maintain that they had probable cause to believe a crime was being committed. Def.'s Brief at 15. The officers were dispatched on a 911 emergency call that reported an assault at Jones's residence. Def.'s App. at 44. On arrival, the officers heard sounds of an argument, including yelling, screaming and crying and sounds of a struggle and physical altercation. Nelson heard a female pleading for someone to stop. Def.'s App. at 102-03. Middlestead was the only female at the residence.
Def.'s App. at 102-03; 127-29; 169-70; 178; 200; 216-221.
The officers contend that in response to their knocking at the door, Jones opened the door but refused to come out. They maintain that Jones was agitated, aggressive, and refused to obey their command that he come out of the house. Def.'s Brief at 16. They assert that James administered a burst of pepper spray after observing a rifle and bat on the floor inside the house and because of Jones's uncooperative demeanor. Def. App. at 109. The officers admit that they used a take-down technique to put Jones on the floor. Id. at 111-115. The officers maintain that their seizure and detention of Jones in this manner was for their, Jones, and Middlestead's safety until they completed their investigation of a possible assault. Def.'s Brief at 16; Def.'s App. at 109. The officers contend that they observed that Middlestead was crying, shaking, upset and had red marks and scratches on her neck. Based on what they heard and observed, Defendant officers believed that a crime had been committed and arrested Jones for assault.
As the court ruled that Plaintiff's excessive force claim is barred by the statute of limitations, it makes no ruling regarding such claim on the merits or on the basis of qualified immunity.
Def.'s App. at 115a, 115b, 168, 180; 205-07.
Jones argues that the individual defendants are not entitled to qualified immunity protection. He maintains that he did not assault Middlestead, nor was she in physical danger or jeopardy from him. Pl.'s Response at 3. He contends that Middlestead did not summon the police. Id. He further argues that Defendants had no information that a crime had taken place, that he had not left his home, that he was not armed, and that he had not done anything illegal. Id. at 10. He asserts that just because he owned a weapon and may not like the police was not an indication that he might use the weapon when he was asked to leave his home. Id. He contends that his evidence that he "did not commit an offense in violation of the law and because of this, there was no probable cause that would justify any police action." Pl.'s Response at 9.
The court agrees that Defendants are entitled to qualified immunity as to Jones's unreasonable seizure claim. The undisputed summary judgment evidence shows that Defendant officers were dispatched to Jones's residence because of a 911 call that reported an assault. There was evidence of an argument between Jones and Middlestead. Based on the facts previously set forth by the court, the officers had probable cause to believe that an assault was in progress.
Given the totality of the facts, a reasonably competent police officer could have believed or concluded that an assault had taken place. Further, based on this evidence a reasonable officer could have believed that the Defendant officers' conduct was lawful in light of clearly established law and the information possessed by them. See Anderson v. Creighton, 483 U.S. at 641. Even if officers of reasonable competence could disagree whether probable cause existed to arrest Jones for assault, Defendant officers are entitled to qualified immunity. See Malley, 475 U.S. at 341. The court concludes, based on the summary judgment evidence, that Jones fails to establish, or raise a genuine issue of material fact, that Defendant officers' arrest of him was objectively unreasonable. Accordingly, Defendant officers are entitled to summary judgment as a matter of law with respect to Jones's § 1983 claim of unreasonable seizure of his person.
E. Plaintiff's § 1983 Claim against the City
Plaintiff contends that the prior to December 8, 1999, the City developed and maintained policies or customs exhibiting deliberate indifference to the constitutional rights of persons in Waxahachie, Texas, that caused the violation of his rights. Pl.'s Complaint at 10. Plaintiff alleges that the City inadequately and improperly supervised and trained officers on the lawful basis for an arrest or entry into a citizen's home; sanctioned arrests and prosecutions without a probable cause determinations; sanctioned "cover charges to allow police officers to cover-up illegal arrests and police abuse;" and failed to require appropriate in-service training or re-training of officers known to engage in police misconduct. Id. at 10-12.
A governmental entity can be sued and subjected to monetary damages and injunctive relief under 42 U.S.C. § 1983 only if its official policy or custom causes a person to be deprived of a federally protected right. Board of the County Comm'rs of Bryan County v. Brown, 520 U.S. 397, 403 (1997); Monell v. New York City Dep't of Soc. Servs., 436 U.S. 658, 694 (1978). A governmental entity cannot be liable for civil rights violations under a theory of respondeat superior or vicarious liability. Id. See also Baskin v. Parker, 602 F.2d 1205, 1208 (5th Cir. 1979). Official policy is defined as:
1. A policy statement, ordinance, regulation, or decision that is officially adopted and promulgated by the [city] lawmaking officers or by an official to whom the lawmakers have delegated policy-making authority; or
2. A persistent, widespread practice of [city] officials or employees which, although not authorized by officially adopted and promulgated policy, is so common and well-settled as to constitute a custom that fairly represents [city] policy. Actual or constructive knowledge of such custom must be attributable to the governing body of the [city] or to an official to whom that body had delegated policy-making authority.Webster v. City of Houston, 735 F.2d 838, 841 (5th Cir. 1984) ( en banc) (per curiam); Bennett v. City of Slidell, 735 F.2d 861, 862 (5th Cir. 1984) ( en banc) (per curiam), cert. denied, 472 U.S. 1016 (1985). A plaintiff must identify the policy, connect the policy to the governmental entity itself and show that his injury was incurred because of the application of that specific policy. Bennett v. City of Slidell, 728 F.2d 762, 767 (5th Cir. 1984), cert. denied, 472 U.S. 1016 (1985). A plaintiff must establish that the governmental entity through its deliberate conduct was the "moving force behind the injury alleged" and must establish a direct causal link between the governmental entity's action and the deprivation of a federally protected right. Bryan County v. Brown, 520 U.S. at 404.
Liability must rest on official policy, meaning the governmental entity's policy, and not the policy of an individual official. Bennett, 728 F.2d at 769. The official complained of must possess
[f]inal authority to establish [city] policy with respect to the action ordered. . . . The official must also be responsible for establishing final government policy respecting such activity before the [city] can be held liable. . . . [W]hether an official had final policymaking authority is a question of state law.Pembaur v. City of Cincinnati, 475 U.S. 469, 481-482 (1986). An employee, agency, or board of a governmental entity is not a policymaker unless the governmental entity, through its lawmakers, has delegated exclusive policymaking authority to that employee agency or board and cannot review the action or decision of the employee, agency or board. See City of St. Louis v. Praprotnik, 485 U.S. 112, 127 (1988); Worsham v. City of Pasadena, 881 F.2d 1336, 1340-41 (5th Cir. 1989).
Jones contends that the City developed and maintained policies or customs exhibiting deliberate indifference to the constitutional rights of persons in the City, which violated his rights. He maintains that:
1) the officers did not know the constitutional requirements necessary to lawfully authorize an entry to a person's home;
2) when the officers became aware that their arrest of him was improper, they invented a cover charge;
3) the officers were ignorant of Fourth Amendment principles, specifically that a warrentless entry into a home requires probable cause of a felony plus an exigent circumstance;
4) the officers lacked training and respect for the U.S. Constitution; and
5) the City was obligated to exercise and establish policies, training and supervision of its officers in the area of Fourth Amendment criteria.
Pl.'s Response at 18-26.
The summary judgment evidence does not support Jones's contentions regarding inadequate or deficient policies of training and supervision. A failure to train allegation can be the basis for liability under 42 U.S.C. § 1983 only if the "failure to train amounts to deliberate indifference to the rights of persons with whom the police come into contact." City of Canton v. Harris, 489 U.S. 378, 388 (1989). Jones offers nothing, other than speculation and belief, that the officers' training and supervision are inadequate. In other words, the failure to train or supervise must reflect "a `deliberate' or `conscious' choice by a municipality," not to train or supervise its officers. Id. at 389; Snyder v. Trepagnier, 142 F.3d 791, 796 (5th Cir. 1998) (quoting City of Canton v. Harris, 489 U.S. at 389). Such "deliberate indifference" regarding failure to train or supervise has simply not been established by Jones. Jones fails to meet his evidentiary burden regarding the failure to adopt or implement a policy. No genuine issue of material fact exists regarding training or supervision. Accordingly, no reasonable jury could return a verdict in Jones's favor regarding the allegation that a policy or custom caused him to be deprived of a constitutionally protected right. Since there is no genuine issue of material fact on this issue, the City is entitled to judgment as a matter of law.
Moreover, even if Jones were to adequately set forth an unconstitutional policy, his claim fails as a matter of law with respect to Plaintiff's unlawful seizure or detention, and unlawful prosecution claims, because the court has found that no underlying violation exists regarding these claims. When there is no underlying constitutional violation, the policy becomes irrelevant and is "quite beside the point." Los Angeles v. Heller, 475 U.S. 796, 799 (1986); see also Saenz v. Heldenfels Bros., Inc., 183 F.3d 389, 392-93 (5th Cir. 1999). If a person suffers no constitutional injury at the hands of the municipal officer, the alleged unconstitutional policy could not have been the cause of any harm to that person.
F. Defendants' Motion to Strike Plaintiff's Summary Judgment Evidence
Defendants filed a motion to strike Jones's summary judgment evidence. The court has previously set forth the applicable standard for competent summary judgment evidence. If the summary judgment evidence did not meet the standard, the court did not consider it, and such evidence played no part in the court's ruling. The court therefore overrules as moot Defendants' motion to strike Plaintiff's summary judgment evidence.
IV. Conclusion
For the reasons herein stated, no genuine issues of material fact exist with respect to Jones's federal claims that Defendants violated his constitutional rights by subjecting him to unreasonable search of his home, unreasonable search and seizure of his person, excessive force, and illegal prosecution. Further, no genuine issues of material fact exist with respect to Jones's state law claims that Defendants subjected him to assault and battery, false arrest and illegal imprisonment, malicious prosecution, illegal search and trespass. Accordingly, the court grants Defendants City of Waxahachie, Texas, John Pillow, Damon James and Robert Nelson's Motion for Summary Judgment, and hereby dismisses this action with prejudice. The court will issue judgment by separate document pursuant to Fed.R.Civ.P. 58.
It is so ordered.