Opinion
Civil Action No. 3:03-CV-0002-N.
July 1, 2004
MEMORANDUM OPINION AND ORDER
Before the Court is Defendants' Motion for Summary Judgment, filed February 9, 2004. Defendants Jason Praytor ("Officer Praytor"), Brent Wright ("Officer Wright"), Clark Stephenson ("Lt. Stephenson"), Ric Bruner ("Officer Bruner") (collectively the "Individual Defendants"), and the City of Cedar Hill, Texas (all collectively "Defendants") move for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure, alleging that they are shielded from liability under the doctrine of qualified immunity and that the undisputed facts of the case foreclose recovery by Plaintiff Vuna Adams, II ("Adams"). Because the facts pled, viewed in the light most favorable to Adams, preclude application of qualified immunity for the Individual Defendants, and because the allegations may support a finding of liability on Adams's state law causes of action, summary judgment is denied for those claims. Because Adams fails to cite an official policy of the City of Cedar Hill which led to any violation of his statutory or constitutional rights, summary judgment is granted for his Section 1983 claims against the city; because Adams's state law claims against the City are for intentional torts, it is entitled to immunity on those claims. Accordingly, Defendants' motion is granted in part and denied in part.
I. BACKGROUND
On January 8, 2001, Plaintiff Vuna Adams traveled to the public parking lot of the Cedar Hill Municipal Building to return his three minor sons to their mother after a planned visitation. Prior to his arrival, Dr. Sheila Adams ("Dr. Adams"), his estranged wife, had been in the police station requesting assistance from Officer Praytor to ensure the return of her children, with whom Adams shared joint visitation. Upon his arrival, Dr. Adams exited the municipal building and walked across the lot in the direction of Adams, his three sons, and his cousin, Reverend Leo Adams. Dr. Adams had been in the police station requesting of Officer Praytor police assistance to ensure the return of her children, with whom Adams shared joint visitation. While Adams was placing the children's belongings into Dr. Adams's van, Praytor approached the vehicle and began speaking to Adams and his cousin, apparently attempting to identify Adams and obtain the names of the children in order to complete a written report concerning Dr. Adams's visit to the station.
Officer Praytor approached Reverend Adams and asked if he was Dr. Adams's husband, and, when directed to the Defendant, asked Adams to identify himself. Adams refused to give his name, and, consequently, Officer Praytor turned to Dr. Adams to continue their earlier interview. According to Adams, he returned to the task of placing his children and their belongings into the van and, a short time later, took exception to statements made by Dr. Adams to Officer Praytor. Officers Praytor, Wright, and Bruner allege that Adams became "highly agitated" at this point; Adams, his cousin, and Dr. Adams contend that he responded politely and at a normal level of speech. Adams alleges that Officer Praytor became disrespectful and told him to "shut up."
As the discussion between Officer Praytor and Adams escalated, Praytor used his police radio to call for officer assistance. Praytor alleges that he ordered Adams to step to the other side of the parking lot and Adams refused; Adams, his cousin, and Dr. Adams all state that Adams was never told to step away, and never refused to do so.
Officers Brent Wright and Ric Bruner arrived shortly thereafter and approached Praytor, Adams, his cousin, Dr. Adams, and the children. All parties agree that at this point, Adams took exception to Officer Praytor's tone, claiming that the Officer's actions were based on racial animus. According to Adams, he asked, "do you address all African-American men as if they are niggers?" and explained to his children that they, too, would be mistreated by police officers throughout their lives because of their race. Praytor again directed Adams to silence himself, to which Adams refused, asserting his right to free speech.
Upon his arrival, Officer Wright asked Adams to produce identification; Adams responded by asking whether he was under arrest. Officer Wright claims that he advised Adams that he was not then under arrest, and once again asked for identification. Once more, Adams replied by asking if he was under arrest. All parties agree that Officer Wright then informed Adams that he was under arrest for failure to produce identification and attempted to handcuff Adams. Adams alleges that, despite his compliance, Officers Praytor and Wright grabbed him violently, threw him to the ground, and forcibly handcuffed him, causing injuries including a fractured nose, abrasions, and back, chest, knee, and leg injuries. Adams's dress pants were torn during the arrest. The Defendants contend that any force used was minor, and that such actions were required because Adams pulled away from the officers and struggled while being handcuffed.
After being restrained, Adams was placed into a cell at the Municipal Building and met with Lieutenant Clark Stephenson. After review of the situation, Defendants concluded that Adams could not be charged with violation of Texas Penal Code § 38.02 ("Failure to Identify"), but was issued a citation for violating Cedar Hill Municipal Code § 14-5(a) ("Failure to Obey"). Defendants also suggest that they had probable cause to arrest Adams for the offenses of violation of Texas Penal Code §§ 42.01 ("Disorderly Conduct") and 42.03 ("Resisting Arrest"). The Failure to Obey charge was eventually dismissed, and Adams was found not guilty by a county jury on a later-filed charge for interference with the duties of a peace officer arising from this incident. Adams seeks recovery for violation of Section 1983 against the City of Cedar Hill and the individual defendants, assault and battery and false arrest/illegal imprisonment against Praytor and Wright, and malicious prosecution against Praytor, Wright, Stephenson, and Bruner.
II. THERE IS NO EVIDENCE THAT A MUNICIPAL POLICY GAVE RISE TO ADAMS'S CLAIMS
Defendants move for summary judgment, contending that liability of all Defendants is barred under the doctrine of qualified immunity. Because Adams's allegations against the individual police officers, if adopted by a finder of fact, would preclude application of immunity, summary judgment is denied. However, because Adams fails to present evidence of an official policy or custom which led to a deprivation of his statutory or constitutional rights, summary judgment is granted as to his Section 1983 claims against the City of Cedar Hill.
A municipality may be held liable under Section 1983 if the execution of one of its customs or policies deprives a plaintiff of his constitutional rights. Monnell v. Dep't of Soc. Services of City of New York, 436 U.S. 658, 690-91 (1978); see also Leatherman v. Tarrant County Narcotics Intelligence Coordination Unit, 507 U.S. 163, 166 (1993) ("a municipality can be sued under § 1983, but it cannot be held liable unless a municipal policy or custom caused the constitutional injury"). However, a city cannot be held liable under Section 1983 on a respondeat superior theory. Id. Section 1983 relief is only available where the municipality "is actually responsible . . . that is, [for] acts which the municipality has officially sanctioned or ordered." Pembaur v. City of Cincinnati, 475 U.S. 469, 479-80 (1986). An official policy is defined as:
1. A policy statement, ordinance, regulation, or decision that is officially adopted and promulgated by the municipality's 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 municipal policy. Actual or constructive knowledge of such custom must be attributable to the governing body of the municipality 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). Here, Adams has failed to present any summary judgment evidence of a policy, practice, or custom adopted by or attributable to the City of Cedar Hill that led to violation of his statutory or constitutional rights. Although, as Adams contends, a municipality may be found liable under Section 1983 for failure to properly train and supervise police officers, such a finding requires proof that "(1) the training or hiring procedures of the municipality's policymaker were inadequate, (2) the municipality's policymaker was deliberately indifferent in adopting the hiring or training policy, and (3) the inadequate hiring or training policy directly caused the plaintiff's injury." Baker v. Putnal, 75 F.3d 190, 200 (5th Cir. 1996). Adams has proffered no such proof. Because there is no genuine issue of material fact to suggest that Cedar Hill had any policy which led to a deprivation of Adams's rights, his Section 1983 claim against the city must be dismissed.
III. FACT ISSUES PRECLUDE SUMMARY JUDGMENT ON THE INDIVIDUAL DEFENDANTS' CLAIM OF QUALIFIED IMMUNITY
Defendants Praytor, Wright, Stephenson, and Bruner argue that they are shielded from individual liability by the doctrine of qualified immunity. Qualified immunity protects government officials performing discretionary functions "from civil damages liability as long as their actions could reasonably have been thought consistent with the rights they are alleged to have violated." Anderson v. Creighton, 483 U.S. 635, 638 (1987). Government officials such as police officers are entitled to qualified immunity if their conduct does not "violate clearly established statutory or constitutional rights of which a reasonable person would have known." Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). 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). Once a constitutional violation is properly alleged, the court must then determine "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.'" Okonkwo v. Fernandez, No. 3:01-CV-1938-L, 2003 WL 22227858, at *7 (N.D. Tex. Sep. 26, 2003) (Lindsay, J.) (quoting Malley v. Briggs, 475 U.S. 335, 341 (1986); emphasis in original). "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." Id. (citing Foster v. City of Lake Jackson, 28 F.3d 425, 429 (5th Cir. 1994)).Initially, there is no question that Adams alleges violation of constitutional rights clearly established by the time of his arrest. Plaintiff seeks recovery for, at minimum, excessive force and false arrest without probable cause. Defendants do not appear to dispute that excessive force, illegal arrest and improper seizure are considered violations of clearly established constitutional rights. See Graham v. Connor, 490 U.S. 386, 394 (1989) (excessive force in the context of an arrest is properly characterized as a Fourth Amendment violation); Mangieri v. Clifton, 29 F.3d 1012, 1016 (5th Cir. 1994) (citing Beck v. Ohio, 379 U.S. 89, 91 (1964)) ("The right to be free from arrest without probable cause is a clearly established constitutional right.").
Defendants instead concentrate their summary judgment argument on the contention that their conduct was objectively reasonable under the circumstances. Officers Praytor and Wright argue that the amount of force used to effectuate Adams's arrest was appropriate because he resisted their attempts to handcuff him, and that any injury Adams sustained was de minimus. In addition, Defendants contend that in light of the information that they possessed at the time of arrest, they had probable cause to arrest Adams for failure to obey a police officer, in violation of a municipal ordinance, and disorderly conduct, in violation of Texas state law. Defendants correctly note that Fifth Circuit and Supreme Court precedent dictates that qualified immunity attaches if a reasonable officer would not have known that his actions violated clearly established law. Harper v. Harris County, Tex., 21 F.3d 597, 600 (5th Cir. 1994) (citing Anderson v. Creighton, 483 U.S. 635, 639 (1987)). However, the Court holds that Adams's allegations, if adopted by a factfinder, indicate objectively unreasonable conduct by the Defendants that no competent officer would believe comports with clearly established law.
Adams alleges, at minimum, excessive force and false arrest and detention without probable cause. Adams claims that in effectuating his arrest, Officers Praytor and Wright used force that was clearly excessive to the need, and objectively unreasonable. According to the summary judgment evidence, Adams's arrest took place during the early evening in a well-lit public parking lot adjacent to the Cedar Hill police station. The interaction with Adams was brought about because Praytor followed Dr. Adams into the parking lot to complete paperwork on Dr. Adams's request to file custodial interference charges, a non-criminal matter. Dr. Adams left the station on her own accord and did not ask Officer Praytor to accompany her into the parking lot. Officer Praytor, initially alone, was soon joined by Officers Wright and Bruner. Defendants do not contend that Adams or any of the bystanders posed an immediate threat to the safety of the officers or each other. According to all present, Adams was, at most, verbally argumentative. He never threatened the officers nor posed a risk of escape. Adams contends that he never refused to obey the officers (save for his refusal to produce identification) and never resisted their attempt to restrain him.
Upon Adams's arrest, Defendants concede that they applied physical force, pushed Adams to the ground, and forcibly handcuffed him in front of his three young children. The summary judgment evidence documents injuries including a fractured nose, knee discomfort, and a contusion to Adams's forehead. Adams also claims that his dress pants were torn and he experienced back, chest, and leg pain as a result of the force applied. Accepting Adams's version for summary judgment purposes, these injuries are more than de minimus, and resulted directly and solely from the use of force by Officers Praytor and Wright. See Siglar v. Hightower, 112 F.3d 191, 193 (5th Cir. 1997) (in a Section 1983 action, injury must be more than de minimus, but need not be significant). Such allegations certainly raise a genuine issue of material fact as to Adams's claim of excessive force. Taken in the light most favorable to Adams — that he was suspected of no criminal activity, did not refuse to comply with the police or resist arrest, and that he was in a secure location posing no risk to the officers or others — the actions of Officers Praytor and Wright could lead a reasonable fact finder to conclude that the use of force was clearly excessive to the need, and objectively unreasonable. Under the facts alleged by Adams, no reasonable officer could have believed that Praytor and Wright's actions were lawful in light of clearly established law and the information possessed by the officers on the night of January 8, 2001. See Malley v. Briggs, 475 U.S. at 341.
Adams further contends that he was arrested without probable cause, again seeking relief under Section 1983 for a violation of his Fourth Amendment rights. "In suits alleging illegal arrest, the qualified immunity determination turns on whether `a reasonable officer could have believed [the arrest] to be lawful, in light of clearly established law and the information the . . . officer possessed.' Even law enforcement officials who `reasonably but mistakenly conclude that probable cause is present' are entitled to immunity." Babb v. Dorman, 33 F.3d 472, 477 (5th Cir. 1994) (quoting Hunter v. Bryant, 502 U.S. 224, 227 (1991)). A court considering qualified immunity in this context "must look to whether [Plaintiff] has alleged sufficient facts from which it can be discerned that no reasonable officer could have believed that probable cause existed to arrest him. . . ." Id. at 477. Here, Defendants initially placed Adams under arrest for Failure to Identify and now suggest that they had probable cause to arrest him for Failure to Obey a Police Officer and Disorderly Conduct.
Defendants do not appear to argue that probable cause existed for arrest under Texas statute for interference with the duties of a peace officer. In any case, no probable cause would exist under the facts alleged by Adams, since the Texas statute contains an express provision that, "[i]t is a defense to prosecution under this section that the interruption, disruption, impediment, or interference alleged consisted of speech only." TEX. PENAL CODE § 38.15(d); see also Carney v. Texas, 31 S.W.3d 392, 396 (Tex.App.-Austin 2000, no pet.).
Defendants correctly concede that no probable cause existed to place Adams under arrest for Failure to Identify. The Texas Penal Code requires only a person who has been lawfully arrested to provide his name, address, or date of birth to a police officer who requests identification. TEX. PENAL CODE § 38.02. Indeed, at the time of Adams's arrest, the Supreme Court had held the application of Penal Code § 38.02 unconstitutional in the absence of reasonable suspicion to believe that the defendant was engaged in or had engaged in criminal conduct. Brown v. Texas, 443 U.S. 47, 53 (1979). Officers Wright confirms that he initially advised Adams that he was not under arrest, and conditioned the subsequent arrest on Adams's refusal to produce identification. Accordingly, Defendants had no probable cause to arrest Adams for Failure to Identify.
The Supreme Court has recently held that it is constitutionally permissible in some circumstances to arrest a suspect for the offense of failure to identify. Hiibel v. Sixth Judicial Dist. Court of Nev., Humboldt County, 2004 WL 1373207, at *7 (U.S. 2004) ("A state law requiring a suspect to disclose his name in the course of a valid Terry stop is consistent with Fourth Amendment prohibitions against unreasonable searches and seizures."). However, Hiibel addresses the topic of what the Constitution permits, not what Texas statutes make unlawful. Here, the Texas Penal Code did not make Adams's failure to identify himself unlawful at the time of his arrest. See TEX. PENAL CODE § 38.02.
Defendants correctly note that an arrest may be supported by probable cause even when the initial charge was unsupportable. See United States v. Bowers, 458 F.2d 1045, 1047 (5th Cir. 1972). Defendants contend that, despite the fact that Wright initially arrested Adams for Failure to Identify, they had probable cause to arrest Adams for the offenses of Failure to Obey a Police Officer and Disorderly Conduct. Accordingly, they argue, probable cause existed and qualified immunity attaches. In the city of Cedar Hill, it is a violation of municipal ordinance to "willfully fail or refuse to comply with any lawful order or direction of a police officer or fire department official." CEDAR HILL MUNICIPAL CODE § 14-5(a). Defendants claim that when ordered to step to the other side of the parking lot, Adams refused to move away. Adams disputes this statement. Because there remains a fact issue as to whether Adams refused to comply with Praytor's order, the Court cannot conclude as a matter of law that probable cause existed for his arrest on a charge of Failure to Obey, or that his subsequent detention was lawful. Crediting Adams's denial, as the Court must do on summary judgment, no reasonable officer could have believed that probable cause existed to arrest Adams for Failure to Obey. Accordingly, qualified immunity does not apply.
Defendants also argue that probable cause existed to arrest Adams for the offense of Disorderly Conduct. Under Texas law, disorderly conduct includes the intentional or knowing use of "abusive, indecent, profane, or vulgar language in a public place, [which language] by its very utterance tends to incite an immediate breach of the peace." TEX. PENAL CODE § 42.01. Adams denies using abusive, indecent, or vulgar language, and Defendants' sole contention appears to be that "a reasonable officer could have concluded that Plaintiff's use of the word `niggers' violated this section, and committed a Class C misdemeanor in the officers' presence." Defendants' Reply to Plaintiff's Response and Brief in Support of Response to Defendants' Motion for Summary Judgment, filed March 19, 2004, at 13. According to Adams, his "polite" use of the word "niggers" was not directed as an insult at the officers or a bystander, but rather in the context of asking Officer Praytor, "[d]o you address all African-American men as if they are niggers?" Taken as true, such a statement would not constitute abusive, indecent, profane, or vulgar language which by its very utterance tends to incite an immediate breach of the peace. Given the facts claimed by Adams, no probable cause existed for his arrest on the charge of Disorderly Conduct, and no reasonable officer could believe that such arrest was lawful in light of clearly established law and the information possessed by the officers. Accordingly, summary judgment is not appropriate for the individual defendants on the basis of qualified immunity, and Defendants' motion is denied.
IV. FACT ISSUES PRECLUDE SUMMARY JUDGMENT ON SOME OF ADAMS'S STATE LAW CLAIMS
Defendants also move for summary judgment on Adams's state law claims for excessive force, assault and battery, false arrest and imprisonment, and malicious prosecution. Initially, the facts alleged by Adams would preclude application of official immunity under Texas law. In Texas, "[g]overnment employees are entitled to official immunity from suit arising from the performance of their (1) discretionary duties in (2) good faith as long as they are (3) acting within the scope of their authority." City of Lancaster v. Chambers, 883 S.W.2d 650, 653 (Tex. 1994). The test for good faith "is derived substantially from the test that has emerged under federal immunity law for claims of qualified immunity in § 1983 cases." Id. at 656. The Court has previously concluded that qualified immunity does not apply to Adams's Section 1983 claims because, viewed in the light most favorable to Adams, a reasonably prudent officer could not have believed that the actions allegedly committed by Defendants were consistent with Adams's rights. Accordingly, good faith has not been established by Defendants as a matter of law, and Defendants are not entitled to summary judgment on Adams's state law claims on the basis of official immunity.
In addition, Defendants argue that Adams has failed to raise genuine issues of material fact for each of his state law claims. The facts pled by Adams as recounted above, if accepted as true by a finder of fact, are sufficient to raise genuine issues of material fact concerning each substantive state law claim. See TEX. PENAL CODE §§ 22.01(a)(1) (elements of assault), 22.01(a)(3) (elements of battery); Richey v. Brookshire Grocery Co., 952 S.W.2d 515, 517 (Tex. 1997) (elements of malicious prosecution); Randall's Food Markets, Inc. v. Johnson, 891 S.W.2d 640, 644 (Tex. 1995) (citing Sears, Roebuck Co. v. Castillo, 693 S.W.2d 374, 375 (Tex. 1985); elements of false imprisonment). Accordingly, the Individual Defendants' motion for summary judgment is denied as to Adams's state law claims.
The situation is different for the City of Cedar Hill. The City of Cedar Hill (but not the Individual Defendants) also moves for summary judgment under section 101.057 of the Texas Tort Claims Act. The Texas Tort Claims act contains an exception to the waiver of sovereign immunity for claims "arising out of assault, battery, false imprisonment, or any other intentional tort. . . ." TEX. CIV. PRAC. REM. CODE § 101.057. Because of this exception to the waiver of the Tort Claims Act, sovereign immunity remains intact for such claims. Thus, Adams's claims against the City of Cedar Hill for assault, battery, and false arrest are facially barred by the statute.
Adams's claim against the City of Cedar Hill for malicious prosecution is likewise barred. One element of malicious prosecution is, obviously, malice.
Malice has been defined as ill will or evil motive, or such gross indifference or reckless disregard for the rights of others as to amount to a knowing, unreasonable, wanton, and willful act. See Ellis County State Bank v. Keever, 870 S.W.2d 63, 69 (Tex.App.-Dallas 1992), aff'd in part and rev'd in part on other grounds, 888 S.W.2d 790 (Tex. 1994). "To establish malice, it is not necessary to prove that the defendant acted with personal spite or ill will; it is sufficient to show the defendant committed wrongful acts in reckless disregard of another's rights and with indifference as to whether the party would be injured." Id.Luce v. Interstate Adjusters, Inc., 26 S.W.3d 561, 566 (Tex.App.-Dallas 2000, no pet.). This requirement is sufficient to make malicious prosecution an intentional tort within section 101.057. Accord City of Hempstead v. Kmiec, 902 S.W.2d 118, 122 (Tex.App.-Houston [1st Dist.] 1995, no writ) ("Most of the plaintiff's allegations are for intentional torts — false arrest, malicious prosecution, defamation. The Tort Claims Act does not waive immunity for intentional torts of the City.") Thus, the City of Cedar Hill is entitled to summary judgment on Adams's state law claims based on immunity.
The parties should consider the consequences of this ruling on Adams's state law claims against the Individual Defendants. See TEX. CIV. PRAC. REM. CODE § 101.106.
CONCLUSION
Because Adams has failed to raise a genuine issue of material fact concerning a policy or custom by the City of Cedar Hill that caused a constitutional injury, the City's Motion for Summary Judgment is granted for Adams's Section 1983 claims. Likewise, because Adams's state law claims against the City allege intentional torts, the City is entitled to summary judgment on those claims based upon immunity. However, Adams has raised genuine issues of material fact that the Individual Defendants denied him constitutionally-protected rights in violation of Section 1983, and that their actions constitute assault and battery, false arrest and illegal imprisonment, and malicious prosecution. If believed by a finder of fact, Adams's claims would not be barred by the doctrine of qualified or official immunity. Accordingly, the Individual Defendants' Motion for Summary Judgment on Adams's Section 1983 and state law claims is denied.