Opinion
Civil Action No. 3:96-CV-0446-L
February 28, 2000
MEMORANDUM OPINION AND ORDER
Before the court is the Motion for Summary Judgment of Defendant Officer Eric Rogers, filed June 4, 1999. Although the court granted Plaintiff John Cross a three-week extension to September 17, 1999, to file a response to Defendant Roger's motion for summary judgment, he never filed a response. Based on the summary judgment record and the applicable law, the court, for the reasons stated below, grants the motion for summary judgment.
I. Procedural and Factual Background
Plaintiff John M. Cross ("Plaintiff" or "Cross") filed this action pursuant to 42 U.S.C. § 1983 against the City of Grand Prairie and several of its police officers on February 14, 1996, alleging violation of certain constitutional rights. In his amended complaint, Cross contends that Officers Eric Rogers ("Rogers") and John Flores ("Flores") violated his Eighth Amendment right to be free from cruel and unusual punishment. As Rogers is the only remaining defendant ( see the court's order of March 17, 1998, dismissing Defendants City of Grand Prairie and Grand Prairie Police Department, and the court's order of January 31, 2000, dismissing Defendants Flores, LaFond, Coursin, and Redlin), the court will not address the claims made against other Defendants. Rogers denies that he used any excessive force against Cross, contends that he used only that force which was reasonably necessary to effect Cross' arrest and protect himself from Cross' violent conduct, and maintains that he is entitled to qualified immunity because his (Rogers') actions did not violate clearly established statutory or constitutional rights of which a reasonable person would have known.
The only claim which relates to Rogers is found in Count 1 of Plaintiff's Amended Complaint, filed May 8, 1997. Cross states that on December 31, 1994, Rogers and Flores responded to a 911 call which was made to seek medical attention for him (Plaintiff). Plaintiff contends that Rogers beat him with a baton and that Flores sprayed pepper mace in his face for no reason. As stated previously, Plaintiff filed no response in opposition to Rogers' motion for summary judgment, although he was given a three-week extension to file one. Moreover, Rogers has submitted supporting evidence with his motion and also relies on the undisputed facts found by the court in its Memorandum Opinion and Order of March 17, 1998. Since Cross has not responded and has submitted no evidence to raise a genuine issue of material fact regarding the earlier findings by the court, the court is permitted to accept the evidence submitted or relied on by Rogers as undisputed. See Eversley v. MBank Dallas, 843 F.2d 172, 174 (5th Cir. 1988).
For purposes of ruling on Rogers' motion, the undisputed evidence is as follows:
On December 31, 1994, Rogers and Flores were dispatched to the home of Glenn A. Ezell ("Ezell"). Ezell informed the officers that Plaintiff was "disoriented" and located in the rear of the house. An ambulance was also dispatched to Ezell's house in response to a call by Ezell.
Rogers and Flores found Plaintiff in a rear bathroom sitting on the toilet with the lights turned off. Ezell informed Rogers, Flores, and Plaintiff that he did not want Plaintiff inside of his house. Plaintiff's lips were white, and he was foaming slightly at the mouth. As Rogers and Flores attempted to escort Plaintiff out of Ezell's house, Plaintiff screamed at the officers, "I want the police!" Rogers and Flores then told Plaintiff that they were officers of the police department. Plaintiff then attempted to push Rogers and Flores out of his way.
With the help of Ezell, Rogers and Flores were able to force Plaintiff to the area around the front door; however, Plaintiff pulled away from the officers and Ezell, and began to knock over items inside the house. Ezell then pushed Plaintiff in the back. The force of the push knocked Plaintiff out the door and out of the grasp of Rogers and Flores.
Plaintiff then grabbed Rogers around the waist and attempted to remove Rogers' firearm from his belt. Plaintiff was successful in releasing the safety device which held Rogers' firearm in his belt. Rogers and Plaintiff then fell to the ground. Plaintiff again tried to remove Rogers' firearm from its holster. Flores then used his pepper spray on Plaintiff in an attempt to subdue him.
At that point, Plaintiff managed to take Rogers' gun and point the barrel at Rogers' stomach. Rogers then pushed the barrel towards Plaintiff's chest. Throughout that time, both officers demanded that Plaintiff release the firearm. Flores then ordered Plaintiff to lie face down on the ground. When Plaintiff refused, Flores struck him in the thigh area with his baton. Plaintiff still refused to lie down, Flores again used his pepper spray on Plaintiff. Rogers again commanded Plaintiff to lie on the ground, but Plaintiff refused. Rogers then struck him several times across the legs with his baton. During that time, Plaintiff continued to kick at the officers.
Plaintiff was able to escape and ran across the street to a neighboring house. He attempted to jump through one of the windows of the house; however, the window was closed and he bounced off the window and fell to the ground. Rogers and Flores had been following close behind. The officers again ordered Plaintiff to lie face down on the ground. Plaintiff again refused. Plaintiff then picked up a heavy metal chair and turned toward the officers as if he were going to swing the chair at them. Rogers once again sprayed Plaintiff with the pepper spray. Both officers were pointing their guns at Plaintiff. Plaintiff then used the chair to break the storm window of the house. Plaintiff successfully entered the house after breaking the window.
Rogers and Flores called for back-up officers. When the other officers arrived, Plaintiff was finally subdued and handcuffed. Plaintiff was then transported to Parkland Hospital in an ambulance for his own safety because the officers believed that Plaintiff had either overdosed on drugs or that he was so mentally ill that he might attack someone or somehow hurt himself.
Court's Memorandum Opinion and Order of March 17, 1998, at pp. 3-4.
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 (c); Celotex Corp. v. Catrett, 477 U.S. 317, 323-25 (1986); Ragas v. Tennessee Gas Pipeline Company, 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.
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 Plaintiff's opposition to Defendants' motion. Id., 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
Rogers moves for summary judgment on four distinct grounds. First, Rogers contends that since Plaintiff was a pre-trial detainee, his Eight Amendment claim must fail as a matter of law. Second, Rogers contends that since Plaintiff pleaded "no contest" to aggravated assault on a public servant, he is barred from asserting an excessive force claim. Third, Rogers contends that he is qualifiedly immune from suit because his conduct as a public official did not violate clearly established law of which a reasonable person would have known. Finally, Rogers contends that Cross' claims are barred by the applicable two-year statute of limitations. Since the court believes that the third ground is dispositive of Plaintiff's claim, it will primarily focus on the issue of qualified immunity.
The court, however, does find it necessary to explain why the first ground (no Eighth Amendment violation) raised by Rogers would not be a proper basis for dismissal in this instance. Further, the court questions whether summary judgment would be proper on the second ground because of the limitations placed on the admissibility of "no contest" pleas by Fed.R.Evid. 410. The court expresses no opinion on the fourth ground asserted by Rogers.
A. Plaintiff's Eighth Amendment Claim
Defendant Rogers contends that "Plaintiff, at best, was a pre-trial detainee" and therefore has no cause of action under the Eighth Amendment. Rogers is correct in stating that pre-trial detainees may not bring an action based on the Eighth Amendment. Baker v. Putnal, 75 F.3d 190, 198 (5th Cir. 1996); Thibodeaux v. Bordelon, 740 F.2d 329, 334 (5th Cir. 1984). The Eighth Amendment protects only those persons who have been convicted. Ingraham v. Wright, 430 U.S. 651, 664 (1977). Ordinarily, this would be reason enough to dismiss Plaintiff's claim because he had not been convicted of a crime at the time of the incident. Plaintiff, however, is pro se, and pleadings of pro se plaintiffs are to be liberally construed and are not to be held to the same stringent standards as those drafted by attorneys. Haines v. Kerner, 404 U.S. 519, 520 (1972); Estelle v. Gamble, 429 U.S. 97, 106 (1976). Accordingly, the court will not dismiss Plaintiff's claim merely on the ground that he brought it under the wrong amendment.
Reference is made to Plaintiff as a possible pre-trial detainee. The correct characterization of Plaintiff is "arrestee." This characterization is extremely important because it determines under which amendment his claim is analyzed. Cross' claim arose during the context of an arrest or investigatory stop. In such cases, the Supreme Court has held: "[A]ll claims that law enforcement officers have used excessive force — deadly or not — in the course of an arrest, investigatory stop, or other `seizure' of a free citizen should be analyzed under the Fourth Amendment and its `reasonableness' standard, rather than under a `substantive due process' approach." Graham v. Connor, 490 U.S. 386, 395 (1989).
B. 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 Rogers has 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, 119 S.Ct. 1292, 1295 (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)). 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.
C. Application of the Qualified Immunity Standard to the Elements of an Excessive Force Claim
The court now applies the qualified immunity standard to the substantive law regarding the elements of an excessive force claim. To recover on a constitutional claim of excessive force, Plaintiff must establish that he suffered (1) an injury, which (2) resulted directly and only from the use of force that was clearly excessive to the need; and the excessiveness of which was (3) objectively unreasonable. Knight v. Caldwell, 970 F.2d 1430, 1432-33 (5th Cir. 1992), cert denied, 507 U.S. 926 (1993); see also Ikerd v. Blair, 101 F.3d 430, 433-34 (5th Cir. 1996); Spann v. Rainey, 987 F.2d 1110, 1115 (5th Cir. 1993). Physical injury means damage or harm to the physical structure of the body, including diseases that naturally result from the harm. Knight v. Caldwell, 970 F.2d at 1433.
Normally, the court would proceed through the first two steps before reaching the third step when analyzing a qualified immunity defense. In this case, however, the competent summary evidence offered by Rogers necessarily establishes that his conduct was objectively reasonable, or at a minimum, a reasonable public official could disagree about the appropriateness of his conduct on the date in question. Accordingly, the court will not engage in an esoteric or extensive analysis of the first and second inquiries that a court often makes in resolving the qualified immunity issue and will proceed directly to the question of objective reasonableness.
The undisputed facts as previously determined by the court set forth in detail Plaintiff's conduct and the officers' response to Plaintiff's conduct. The action of Rogers and his partner was in response to Plaintiff's behavior. Ezell did not want Plaintiff in his home. Plaintiff was physically aggressive and uncooperative when the officers tried to escort him from Ezell's home. He resisted arrest, was physically violent toward the officers, and even attempted to use illegal and deadly force against the officers. Ultimately, he was subdued and arrested with the assistance of additional officers.
Based on these facts, Rogers and his partner used only that force which was reasonably necessary to effect the arrest of Plaintiff and protect themselves from Cross' violent attack and attempted use of deadly force. Rogers and his partner would have been totally justified in using deadly force against Cross when he temporarily obtained Rogers' firearm; however, no such force was used by Rogers or his partner. Although Cross may have suffered some injury, the striking of Plaintiff with the baton and the use of pepper spray on him did not, under the circumstances faced by Rogers and his partner, constitute force which was clearly excessive to the need or force which was objectively unreasonable. A reasonable police officer faced with Rogers' situation would, and certainly could, conclude that Rogers' use of force was objectively reasonable under existing clearly established law. Alternatively, even if some police officers of reasonable competence could disagree whether the use and amount of force by Rogers were legal (that is, whether the use and amount of force were clearly excessive to that needed to effect Plaintiff's arrest and to protect Rogers and his partner from Plaintiff's violent actions and attempted use of deadly force), immunity should be recognized. See Malley v. Briggs, 475 U.S. at 341.
For the reasons previously stated, Rogers is entitled to qualified immunity regarding Plaintiff's claim of excessive force. There is no genuine issue of material fact with respect to Plaintiff's claim of excessive force, and Rogers is entitled to summary judgment as a matter of law.
IV. Conclusion
For the reasons stated herein, Rogers is entitled to summary judgment. Accordingly, the Motion for Summary Judgment of Defendant Eric Rogers is granted. This action is hereby dismissed with prejudice against Defendant Rogers. Judgment will be issued by separate document.
It is so ordered.