Opinion
Civil Action No. SA-OO-CA-784-NN
June 13, 2001
MEMORANDUM DECISION
Before the Court are Plaintiff Richard Dearmon Crow's First Amended 42 U.S.C. § 1983 Civil Rights Complaint (Docket Entry # 18) and Defendants' Motion for Summary Judgment or Motion to Dismiss (Docket Entry # 29). This Decision is entered pursuant to 28 U.S.C. § 636 (c) on the consent of the parties. (See Docket Entries ## 6, 7, 9.)
I.
This case arises out of a dispute between Plaintiff Crow and Comal County Sheriff's Deputy John Matthews on July 11, 1998 at Comal Park. The following facts are established by the Affidavits of Plaintiff Crow (Docket Entry # 30 Ex. D), Defendant Matthews (Docket Entry #29 Ex. B), and Army Corp of Engineers Park Ranger Frank Cerda (Docket Entry #29 Ex. C):
Comal Park is a popular recreation area adjacent to Canyon Lake, near new Braunfels, Texas. Comal Park is operated by the Army Corp of Engineers which contracts with the Carnal County Sheriffs' Department to patrol and provide law enforcement services in the Park.
The Comal Park parking lot was previously the site of drunken-tailgate parties, that also involved gang-activity, drug-dealing, prostitution, and other activities inconsistent with the Park's mission of furnishing the public a safe family-friendly recreational area. To discourage these activities, the Park had a policy of prohibiting loitering in the Park's parking lots and had "no loitering" signs posted in the parking lots.
On the afternoon of July 11, 1998, Crow and approximately eleven other Honda CRV owners were conducting a car show in the Comal Park parking lot. They were approached by Army Corp Ranger Frank Cerda who advised the group they were in violation of the posted "no loitering on parking lot" signs and they would have to disperse to the Park or leave. In response to Ranger Cerda's repeated requests, Crow argued with Ranger Cerda stating they had the permission of the Park gate attendant to be there and then Crow walked away. When the group did not disperse to the Park or leave, Ranger Cerda called Deputy Matthews to back him up. When Deputy Matthews arrived he advised the group they were violating the "no loitering" signs and policy and would have to disperse.
At this point, Plaintiff Crow's and Deputy Matthews' accounts diverge. Matthews states that Crow stepped forward and advised Matthews they were not doing anything wrong and would not leave the parking lot. Matthews states that Crow refused Deputy Matthews repeated requests that he leave the parking lot and refused Matthews' repeated requests that Crow identify himself. In contrast, Crow states that Deputy Matthews arrested him before the group had a reasonable opportunity to leave and before Crow had a reasonable opportunity to produce his identification.
In any event, as a result of this incident Matthews placed Crow under arrest. As Matthews forced Crow's arms behind his back to apply handcuffs, Crow protested that he had burns to his arms and Matthews was hurting him. Matthews released Crow and directed him to wait in the patrol vehicle. Matthews called EMS technicians who examined Crow. Crow was then placed under arrest for resisting arrest and failing to identify himself to a law enforcement officer. Crow was booked at the Comal County Jail in New Braunfels and posted bond that afternoon.
The resisting arrest charge was later dropped. Crow failed to appear in court to answer the "failure to identify" charge and the court found him guilty and forfeited his bond,
Crow brought this Civil Rights Complaint against Matthews and Comal County Sheriff Bob Holder in their individual and official capacities for violation of his First Amendment right to freedom of expression, unlawful arrest and prosecution in violation of due process, and excessive use of force. Crow also asserts State claims for trespass, assault, and battery, and seeks a declaratory judgment that his arrest violates Texas Code of Criminal Procedure article 15.17 because he was not taken before a magistrate in a timely manner.
Defendants move for summary judgment and dismissal of Crow's Complaint on the basis that: there is no showing of a requisite custom or policy for suit against the County or the Defendants in their official capacities; there is no showing of Sheriff Holder's involvement; the record shows no excessive force; there was probable cause for Crow's arrest and thus he has no basis for false arrest or prosecution claims; Crow presented no basis for a State tort action; and Defendants are entitled to qualified immunity.
II.
An action may be dismissed for failure to state a claim for relief pursuant to Fed.R.Civ.P. 12(b)(6) where "it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Conley v. Gibson, 355 U.S. 41, 45-6, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957). On a motion to dismiss for failure to state a claim, this Court accepts as true the factual allegations of the complaint. U.S. v. Gaubert, 499 U.S. 315, 326, 111 S.Ct. 1267. 113 L.Ed.2d 335 (1991).
A party is entitled to summary judgment pursuant to Fed.R.Civ.P. 56 (c) where the record shows there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law. A party against whom summary judgment is sought may not rest on the allegations or denials of his pleadings, but must come forward with sufficient evidence to demonstrate a "`genuine issue for trial.'" Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). A dispute concerning a material fact is "genuine" and sufficient to overcome a summary judgment motion "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Id. Conclusory allegations, speculation, and unsubstantiated assertions are not adequate to satisfy the nonmovant's burden. Douglass v. United Servs. Auto. Ass'n, 79 F.3d 1415, 1429 (5th Cir. 1996) (en banc). Summary judgment may be granted "against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex Corp. v. catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986).
-A-
A suit against a governmental officer "in his official capacity" is in effect a suit against the entity the officer represents. McMillian v. Monroe County, 520 U.S. 781, 785 n. 2, 117 S.Ct. 1734, 138 L.Ed.2d 1 (1997). Crow's claims against Sheriff Holder and Deputy Matthews in their official capacities are in effect claims against Comal County. Counties and supervisors are not liable for constitutional violations committed by county employees unless those violations result directly from a municipal custom or policy. See City of Canton v. Harris, 489 U.S. 378, 385, 109 S.Ct. 1197, 1203, 103 L.Ed.2d 412 (1989). Crow presented no evidence that Comal County has a custom or de facto policy of tolerating arrests without probable cause or subjecting citizens to excessive force as Crow alleges. Therefore Crow has no claim against Comal County or Deputy Matthews or Sheriff Holder in their official capacities.
-B-
In a § 1983 civil rights action a plaintiff must show the defendant was personally involved in the actions plaintiff complains of, or is responsible for the policy or custom giving rise to the constitutional deprivation. See Murphy v. Kellar, 950 F.2d 290, 292 (5th Cir. 1992); McConney v. Houston, 863 F.2d 1180, 1184 (5th Cir. 1989); Reimer v. Smith, 663 F.2d 1316, 1323 (5th Cir. 1981); Howell v. Tanner, 650 F.2d 610, 615 (5th Cir. 1981), cert. denied, 456 U.S. 918 919 (1982). An employer cannot be held liable under § 1983 on a respondeat superior theory, i.e. an employer is not liable under § 1983 solely because it employs a tortfeasor. Monell v. Dept. Soc. Servs. City New York, 436 U.S. 658, 691, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978). Crow failed to allege or offer proof how Sheriff Holder in his individual capacity was involved in the matters he complains of. Therefore, Sheriff Holder is entitled to summary judgment and dismissal of the claims against him.
-C-
The record shows Crow was convicted for failing to identity himself to a law enforcement officer. (Docket Entry # 29 Ex. I.) Under Texas law, it is a class C misdemeanor for a person to intentionally refuse to give his name, address, or date of birth to a peace officer making a lawful arrest. Tex. Penal Code § 38.02(a) (c). Crow's conviction bars his civil rights claims for unlawful arrest and wrongful prosecution because his "conviction for the . . . offense conclusively established that the arrest was made with probable cause." See Howell v. Tanner, 650 F.2d 610, 615 n. 6 (5th Cir. 1981). In Heck v. Humphrey, 512 U.S. 477, 486-87, 114 S.Ct. 2364, 129 L.Ed.2d 383 (1994), the Supreme Court explained as follows:
[I]n order to recover damages for allegedly unconstitutional conviction or imprisonment, or for other harm caused by actions whose unlawfulness would render a conviction or sentence invalid, a § 1983 plaintiff must prove that the 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, 28 U.S.C. § 2254. A claim for damages bearing that relationship to a conviction or sentence that has not been so invalidated is not cognizable under § 1983. Thus, when a [plaintiff] seeks damages in a § 1983 suit, the district court must consider whether a judgment in favor of the plaintiff would necessarily imply the invalidity of his conviction or sentence; if it would, the complaint must be dismissed unless the plaintiff can demonstrate that the conviction or sentence has already been invalidated.
Crow's false arrest, wrongful prosecution, and declaratory judgment claims are in effect collateral attacks on his State conviction. A judgment in Crow's favor on any of these claims would necessarily imply the invalidity of his conviction for failure to identify himself to a peace officer; therefore Heck v. Humphrey bars Crow's civil rights action until Crow's conviction is invalidated on direct appeal or through habeas corpus. See Wells v. Bonner, 45 F.3d 90, 94-96 (5th Cir. 1995). Therefore, Crow's false arrest, wrongful prosecution, declaratory judgment claim, and any other claims inconsistent with his conviction, are barred. See id.
Crow contends his conviction for failure to identify is unlawful because he was not lawfully subject to arrest, and therefore was not required to identify himself. This issue could have and should have been raised in the criminal proceedings. This issue is now barred. Even if this issue were not barred, it is without merit. Pursuant to Texas Penal Code art. 42.03(a)(2) (Westlaw 1998) it is an offense to "[d]isobey a reasonable request or order to move issued by . . . a police officer . . . with authority to control the use of the premises" Texas Penal Code art. 38.15(a)(1) (Westlaw 1998) states it is an offense to interrupt, disrupt, or interfere with a peace officer in the performance of his duties. The record shows Ranger Cerda repeatedly directed Crow and his friends to disperse to the Park or to leave, and Crow declined to do so. ( See Docket Entry # 29 Ex. C at ¶ 5-10.) Crow failed to specifically contradict Ranger Cerda's account ( see Docket Entry # 30 Ex. D); therefore there was probable cause for Crow's arrest and there is no material issue for trial. Crow complains that Deputy Matthews failed to give him adequate time to clear the parking lot. However, Crow fails to explain why he failed to honor Ranger Cerda's earlier request that he clear the parking lot and fails to explain what he was still doing in the parking lot when Deputy Matthews later arrived.
Crow's Affidavit ( see Docket Entry # 30 Ex. D at ¶ 12 and 13) reciting Texas Penal Code arts. 38.15(a)(1) and 42.03(a)(2) and stating Crow did not violate these provisions, does not raise a triable issue. It is well-settled that "affidavits setting forth `ultimate or conclusory facts and conclusions of law' are insufficient to support or defeat summary judgment." McCallum Highlands, Ltd. v. Washington Capitol Dus, Inc., 66 F.3d 89, 91 (5th Cir. 1995).
-D-
Crow also alleges he was subjected to excessive force in the course of his arrest. The record shows this claim is without merit.
To establish an excessive force claim, a civil rights plaintiff must show "(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." Glenn v. City of Tyler, 242 F.3d 307, 314 (5th Cir. 2001). The Affidavits of Deputy Matthews (Docket Entry # 29 Ex. B) and Ranger Cerda (Docket Entry # 29 Ex. C) state: When Deputy Matthews grabbed Crow's arm to turn him around to apply the handcuffs, Crow yelled that Matthews was hurting previous burns to Crow's arms. Crow did not tell Matthews about the burns beforehand and Crow was wearing a long-sleeve shirt making it impossible for Matthews to see the burns. Deputy Matthews released Crow and told him to get in the patrol car. Deputy Matthews asked Crow if he wanted EMS to examine him, and Crow declined. Matthews called EMS anyway and Crow's arms were examined. Crow was then transported to the Carnal County Jail for booking. Plaintiff Crow's Affidavit (see Docket Entry # 30 Ex. D) fails to specifically contradict these facts and therefore fails to present a material issue for trial.
The record shows that Deputy Matthews used no more than customary force while arresting Crow, and Crow was immediately released when he made Deputy Matthews aware of the burns to his arm. Therefore there is no showing of an objectively unreasonable use of force. See Glenn v. City of Tyler, 242 F.3d at 314 ("This court finds that handcuffing too tightly, without more [such as a showing of malice], does not amount to excessive force"). Furthermore, the fact that Crow declined Matthews' offer to obtain medical assistance (which Matthews obtained anyway) and the fact the EMS technicians found Crow did not need attention, shows Crow was not injured, or if he was injured, that his injuries were no more than de minimus and not a basis for a federal action, see Siglar v. Hightower, 112 F.3d 191, 193 (5th Cir. 1997).
-E-
It is not apparent from Crow's Complaint what his purported basis is for his First Amendment and State trespass claims. In response to Defendants' Summary Judgment Motion, Crow offers no evidence on these claims and fails to explain or even mention these claims. Therefore, these issues fail to present a material issue of fact and Defendants are entitled to summary judgment and dismissal of these claims. Furthermore, these claims are deemed abandoned for failure to address them. See Wooley v. City of Baton Rouge, 211 F.3d 913, 918 (5th Cir. 2000). In any event, if his First Amendment claim is based on his objection to Comal Park's "no loitering" policy, this policy was adopted by the Army Corp of Engineers which is not a party to this action. Moreover, because this policy is related to the circumstances leading to his arrest, this issue is barred as previously discussed by Heck v. Humphrey. Furthermore, this Court concludes Crow's lawful arrest and the fact that the record shows the force used in arresting Crow was objectively reasonable precludes his State assault and battery claims. See Hinojosa v. City of Terrell, 834 F.2d 1223, 1231-32 (5th Cir. 1988), cert. denied, 493 U.S. 822 (1989); Tex. Penal Code art. 9.51(a) ("A peace officer . . . is justified in using force against another when and to the degree the actor reasonably believes the force is immediately necessary to make or assist in making an arrest").
-F-
Qualified immunity extends to government officials performing discretionary functions "insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known." Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982). Dctermination of qualified immunity claims requires a two-step analysis: whether plaintiff has shown a violation of a constitutional right and whether the constitutional right allegedly violated was clearly established at the time the events in question occurred. Nerren v. Livingston Police Dept., 86 F.3d 469, 473 (5th Cir. 1996). When a public official pleads the affirmative defense of qualified immunity in his answer, it is the plaintiffs' burden to overcome the defense, and the district court may require the plaintiff to reply to that defense in sufficient detail to overcome the defense or face dismissal. Schultea v. Wood, 47 F.3d 1427, 1433 (5th Cir. 1995) (en banc). Because Crow failed to introduce evidence sufficient to create a material issue of fact concerning the violation of his clearly established constitutional rights, he failed to overcome Defendants' qualified immunity defenses. See Leatherman v. Tarrant County Narcotics Intelligence Coordination Unit, 28 F.3d 1388, 1397-99 (5th Cir. 1994).
III.
Plaintiff Crow's claims are either barred, fail to state a claim for relief, or are refuted by the record, and therefore Defendants' are entitled to summary judgment and dismissal of Crow's Complaint. Accordingly, Defendants' Motion for Summary Judgment or Motion to Dismiss (Docket Entry # 29) is GRANTED and Plaintiff Crow's 42 U.S.C. § 1983 Civil Rights Complaint is DISMISSED.