Opinion
Civil Action No. 3:04-CV-1084-G.
February 2, 2005
MEMORANDUM ORDER
Before the court are (1) the motion of defendant City of Corsicana (the "City") to dismiss the plaintiffs' claims against it; (2) the motion of defendant Navarro County (the "County") to dismiss the plaintiffs' claims against it; (3) the motion of defendant Charles Fincher ("Fincher") to dismiss the plaintiffs' claims against him, or in the alternative, for summary judgment; and (4) the motion of defendant Brad Gannon ("Gannon") to dismiss the plaintiffs' claims against him, or in the alternative, for summary judgment. For the reasons discussed below, the City's and County's motions to dismiss are granted in part and denied in part, and Fincher's and Gannon's motions to dismiss (and alternative motions for summary judgment) are denied.
I. BACKGROUND
This case arises under 42 U.S.C. §§ 1983, 1985, and 1988. Plaintiffs' Second Amended Complaint ("Complaint") at 3. The plaintiffs, Mary Duque, Melinda Lopez Hernandez, Felisha Hernandez, and Tiffany Hernandez (collectively, the "plaintiffs"), are all relatives of, and bring suit individually and on behalf of, Gilbert Hernandez ("Hernandez"), now deceased. Id. The plaintiffs allege that the City, the County, Fincher, and Gannon violated Hernandez' constitutional rights during the course of his arrest on May 7, 2003. See generally Complaint.
Specifically, the plaintiffs allege that on May 7, 2003, Fincher, an officer employed by the City of Corsicana Police Department, and Gannon, an officer employed by the Navarro County Sheriff's Office (collectively, the "officers"), utilized excessive force when effecting the arrest of Hernandez. Complaint at 3. The plaintiffs allege that, after Hernandez initially fled from the officers and was apprehended, Fincher and Gannon repeatedly struck and/or kicked Hernandez. Id. at 4. Fincher and Gannon each assert that they used much less force than the plaintiffs allege, and that the force used was necessary because Hernandez resisted arrest. Defendant Brad Gannon's Brief in Support of His Motion to Dismiss or, in the Alternative, for Summary Judgment ("Gannon's Motion") at 1-3; Brief in Support of Charles Fincher's Motion to Dismiss or, in the alterative, for Summary Judgment ("Fincher's Motion") at 1-3. The plaintiffs have provided one affidavit and three voluntary statements from several eyewitnesses to the chase, apprehension, arrest, and aftermath (the "incident"). Appendix to Brief in Support of Plaintiffs' Response to Defendant Charles Fincher's Motion to Dismiss or, in the Alternative, for Summary Judgment ("Plaintiffs' Appendix") at 9-18. The eyewitnesses' accounts of the incident are quite different from the accounts given by Fincher and Gannon. The eyewitness' and officers' testimony as to their recollections of the incident is discussed in more detail in the relevant sections below.
The plaintiffs have submitted an appendix in support of their response to Gannon's motion as well. See generally Appendix to Brief in Support of Plaintiffs' Response to Defendant Brad Gannon's Motion to Dismiss or, in the Alternative, for Summary Judgment. This appendix is identical to the appendix submitted with the plaintiffs' response to Fincher's motion. Therefore, the court will cite to the "Plaintiffs' Appendix" regardless of which response it supports.
After Hernandez was apprehended, arrested, and taken to a patrol vehicle, he complained of dizziness and pain and "slumped over." Gannon's Motion at 3. Soon thereafter he was taken to Navarro Regional Hospital, where he underwent surgery for a lacerated liver. Id. Unfortunately, the surgery was unsuccessful and Hernandez died. Id. The plaintiffs, Gannon, and Fincher have each provided the court with an autopsy report, which concludes that Hernandez' death was a homicide caused by blunt force injuries. Plaintiffs' Appendix at 21-28; Defendant Brad Gannon's Appendix to Brief in Support of His Motion to Dismiss or, in the Alternative, for Summary Judgment ("Gannon's Appendix") at 28-44; [Fincher's] Summary Judgment Appendix ("Fincher's Appendix") at 22-38.
II. ANALYSIS A. Standard for Dismissal under Rule 12(b)(6)
Federal Rule of Civil Procedure 12(b)(6) authorizes dismissal of a complaint for "failure to state a claim upon which relief can be granted." FED. R. CIV. P. 12(b)(6). There are two primary principles that guide the court's determination of whether dismissal under Rule 12(b)(6) should be granted. First, a motion under Rule 12(b)(6) should be granted only if it appears beyond doubt that the nonmovants could prove no set of facts in support of their claims that would entitle them to relief. Conley v. Gibson, 335 U.S. 41, 45-46 (1957); Leffall v. Dallas Independent School District, 28 F.3d 521, 524 (5th Cir. 1994); see also Kaiser Aluminum Chemical Sales, Inc. v. Avondale Shipyards, Inc., 677 F.2d 1045, 1050 (5th Cir. 1982) (citing WRIGHT MILLER, FEDERAL PRACTICE AND PROCEDURE: CIVIL § 1357 at 598 (1969), for the proposition that "the motion to dismiss for failure to state a claim is viewed with disfavor and is rarely granted"), cert. denied, 459 U.S. 1105 (1983). Second, the court must accept all well-pleaded facts as true and view them in the light most favorable to the nonmovants. See Capital Parks, Inc. v. Southeastern Advertising and Sales System, Inc., 30 F.3d 627, 629 (5th Cir. 1994); Norman v. Apache Corporation, 19 F.3d 1017, 1021 (5th Cir. 1994); Chrissy F. by Medley v. Mississippi Department of Public Welfare, 925 F.2d 844, 846 (5th Cir. 1991). However, conclusory allegations and unwarranted factual deductions will not suffice to avoid a motion to dismiss. United States ex rel. Willard v. Humana Health Plan of Texas Inc., 336 F.3d 375, 379 (5th Cir. 2003).
B. The City's and the County's Motions to Dismiss 1. Section 1983 Claims against Municipalities
The Fifth Circuit clarified the law governing municipal liability for § 1983 claims in Piotrowski v. City of Houston. "Under the decisions of the Supreme Court and [the Fifth Circuit], municipal liability under section 1983 requires proof of three elements: a policymaker; an official policy; and a violation of constitutional rights whose 'moving force' is the policy or custom." Piotrowski v. City of Houston, 237 F.3d 567, 578 (5th Cir.), cert. denied, 534 U.S. 820 (2001); see also Palmer v. City of San Antonio, Texas, 810 F.2d 514, 516 (5th Cir. 1987) (quoting Grandstaff v. City of Borger, Texas, 767 F.2d 161, 169 (5th Cir. 1985), cert. denied, 480 U.S. 916 (1987), abrogated on other grounds in Leatherman v. Tarrant County Narcotics Intelligence and Coordination Unit, 507 U.S. 163, 167 (1993)). The Supreme Court has determined that federal courts may not apply the heightened pleading requirement for § 1983 claims against government officials to similar claims against a city. See Leatherman v. Tarrant County Narcotics Intelligence and Coordination Unit, 507 U.S. 163, 164 (1993). Thus, to avoid dismissal of their claims against the city, the plaintiffs simply have to plead facts satisfying the pleading requirements of FED. R. CIV. P. 8(a).
A municipality may be liable under § 1983 if the execution of one of its customs or policies deprives the plaintiffs of their constitutional rights. A city cannot be liable under § 1983, however, merely because it employed a tortfeasor. See Monell v. Department of Social Services of the City of New York, 436 U.S. 658, 691 (1978); Campbell v. City of San Antonio, 43 F.3d 973, 977 (5th Cir. 1995). According to the Supreme Court, "[t]he 'official policy' requirement . . . make[s] [it] clear that municipal liability [under § 1983] is limited to action for which the municipality is actually responsible . . . that is, acts which the municipality has officially sanctioned or ordered." Pembaur v. City of Cincinatti, 475 U.S. 469, 479-80 (1986). The policy or custom must be "the moving force of the constitutional violation." Palmer, 810 F.2d at 516 (quoting Monell, 436 U.S. at 694). Although the plaintiffs have introduced no official written policy regarding their § 1983 claim, such a policy may nevertheless exist in the form of an unwritten custom. The custom or policy must actually be that of the City's, or County's, governing body before the City, or County, can be held liable. See Bennett v. City of Slidell, 728 F.2d 762, 767 (5th Cir. 1984) (en banc), cert. denied, 472 U.S. 1016 (1985).
A single incident unaccompanied by supporting history will likely be an inadequate basis for inferring such a custom unless the actor or actors involved had been given official policy-making authority. See Worsham v. City of Pasadena, 881 F.2d 1336, 1339-40 (5th Cir. 1989) (citations omitted); Palmer, 810 F.2d at 516-17. "'[M]unicipal liability under 1983 attaches where — and only where — a deliberate choice to follow a course of action is made from among various alternatives' by city policymakers." City of Canton, Ohio v. Harris, 489 U.S. 378, 389 (1989) (quoting Pembaur, 475 U.S. at 483-84).
The Fifth Circuit defines official policy 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. Actions of officers or employees of a municipality do not render the municipality liable under § 1983 unless they execute official policy as above defined.Webster v. City of Houston, 735 F.2d 838, 841 (5th Cir.) (per curiam), aff'd in relevant part on rehearing, 739 F.2d 993 (5th Cir. 1984) (en banc); see also Johnson v. Moore, 958 F.2d 92, 94 (5th Cir. 1992).
2. Allegations Made in the Complaint
In the complaint, the plaintiffs assert that it was "[t]he custom and practice of [the County and the City] . . . to encourage officers to use excessive force . . . particularly . . . with regard to arrest situations where a suspect attempted to flee." Complaint at 5. The plaintiffs further allege that there was "a widespread practice within the departments to use whatever force necessary to catch and subsequently punish the suspect especially when the subject attempted to flee. These practices and lack of training were so common and widespread as to constitute a custom that fairly represents the policy of the County and the City." Id. at 5-6. The complaint continues, "[i]mplementation of the above practices, policies and customs, as well as the lack of training by the City and the County constituted deliberate indifference to [Hernandez'] constitutional rights. Furthermore, said customs and policies were the moving force, and a direct cause of [Hernandez'] death." Id. at 6.The plaintiffs specifically allege that the "County is liable because a pattern, practice or policy of constitutional violations existed and/or there was grossly inadequate training that was likely to result in constitutional violations." Id. at 9. In support of this allegation, the plaintiffs assert that there have been "numerous lawsuits filed against [the] County and the Sheriff's office in recent years." Id. However, no specific lawsuit or the details of any lawsuit was referenced by the plaintiffs. The plaintiffs allege that the "County Judge, County Commissioners, and/or the Sheriff of Navarro County were the policy makers, or, in the alternative, [these parties] delegated policy-making authority to another." Id. Finally, the complaint avers that the "practices, policies, customs, as well as the constitutionally inadequate training by [the] County constituted deliberate indifference towards [Hernandez'] constitutional rights," and that the alleged policies were the moving force and a cause of his death. Id.
The plaintiffs make similar allegations against the City. Id. at 10-11. Specific to the City, however, the plaintiffs assert that "the City Council, Mayor, and/or Police Chief of the City of Corsicana were the policy makers, or, in the alternative, [these parties] delegated policy-making authority to another." Id. at 10.
It appears that the plaintiffs have sufficiently pleaded the necessary facts and elements of a section 1983 claim against the City and the County. In their complaint, the plaintiffs identified policymakers for the County and the City. Furthermore, the plaintiffs allege a widespread practice and policy to use excessive force on fleeing suspects, which is sufficient, at this stage, to satisfy one of the Fifth Circuit's definitions of an official policy. See Webster, 735 F.3d at 841. Finally, the plaintiffs assert that these practices and policies were the moving force of the violation of Hernandez' constitutional rights. If the plaintiffs can prove these factual allegations made in the complaint, they would be entitled to relief from the City and the County. Therefore, the plaintiffs have met the minimal pleading requirements of Rule 8(a) of the Federal Rules of Civil Procedure, and, accordingly, the City's and County's motions to dismiss the plaintiffs § 1983 claims against them are denied.
3. Failure to Train Claims against the City and the County
The City and County also seek dismissal of the plaintiffs' failure to train claims asserted against them. Defendant City of Corsicana's Motion to Dismiss and Supporting Brief ("City's Motion") at 9-10; Defendant Navarro County's Brief in Support of Its Motion to Dismiss ("County's Motion") at 6-7. The City and County argue that a municipality prevails on a failure to train claim asserted against it if the municipality can show that its training program is in compliance with the state-mandated training standards for law enforcement officers. City's Motion at 9 (citing Huong v. City of Port Arthur, 961 F.Supp. 1003, 1007 (E.D. Tex. 1997)); County's Motion at 6 (same). In support of their argument, the City has provided the training record of Fincher, and the County has provided the training record of Gannon. Officer Charles Fincher's TCLEOSE Training Records, Defendant City of Corsicana's Appendix to Motion to Dismiss at 7-9; Defendant Navarro County's Appendix to Brief in Support of its Motion to Dismiss at 1-4. In response to the City's and County's arguments, the plaintiffs concede that dismissal of the failure to train claims is appropriate if the record shows that the individual defendants met TCLEOSE standards. Plaintiffs' Response to Defendant City of Corsicana's Motion to Dismiss and Supporting Brief at 12; Plaintiffs' Response to Defendant Navarro County's Rule 12(b)(6) Motion to Dismiss at 10. The plaintiffs offer no argument as to why the training records of Gannon and Fincher are not admissible; rather, they argue merely that the claims should not be dismissed because it cannot be shown that Gannon and/or Fincher complied with the state-mandated standards. Id. This, however, is not material to the issue of whether the City and County provided adequate training. Therefore, the plaintiffs' failure to train claims against the City and the County are dismissed.
C. Fincher's and Gannon's Motions
The facts alleged, arguments raised, and relief requested by Fincher's and Gannon's motions are quite similar, if not identical in every respect. The officers first seek dismissal of the plaintiffs' excessive force claims asserted against them for failure to state a claim upon which relief may be granted. See generally Fincher's Motion; Gannon's Motion. Next, the officers both argue that dismissal is appropriate because each of them is entitled to qualified immunity. Id. In the alternative, Gannon and Fincher both assert that summary judgment is appropriate because there is no evidence to support the plaintiffs' excessive force claim or, for the same reasons, to deny their claims of qualified immunity. Id. The officers also seek dismissal of the plaintiffs' § 1985 claims "because they have failed to allege all of the required elements of this claim." Fincher's Motion at 1; Gannon's Motion at 1-2.
1. Applicable Legal Standard a. Nature of Fincher's and Gannon's Motions
When matters outside the pleadings are considered by a district court on a motion to dismiss, Rule 12(b) requires the court to treat the motion as one for summary judgment and to dispose of it as required by Rule 56. FED. R. CIV. P. 12(b); Carter v. Stanton, 405 U.S. 669, 671 (1972) (per curiam). Accordingly, consideration of a motion to dismiss for failure to state a claim under Rule 12(b)(6) requires a court to limit its inquiry to the contents of the pleadings, including documents attached thereto or incorporated in the complaint. See Collins v. Morgan Stanley Dean Witter, 224 F.3d 496, 498 (5th Cir. 2000); Lovelace v. Software Spectrum Inc., 78 F.3d 1015, 1017 (5th Cir. 1996). Documents attached to a motion to dismiss that "are referred to in the [plaintiffs'] complaint and are central to [the plaintiffs'] claims" are properly within a court's consideration of a Rule 12(b)(6) motion, Collins, 224 F.3d at 498-99 (quoting Venture Associates Corporation v. Zenith Data System Corporation, 987 F.2d 429, 431 (7th Cir. 1993)); see also Scanlan v. Texas AM University, 343 F.3d 533, 536 (5th Cir. 2003), as are "matters of which [the court] may take judicial notice." Lovelace, 78 F.3d at 1017-18 (citing FED. R. EVID. 201(f) ("Judicial notice may be taken at any stage of the proceeding.")); see also Scanlan, 343 F.3d at 537.In each of their motions, Fincher and Gannon rely on their own affidavits, the affidavit of an expert in the field of law enforcement, and the autopsy report. See, e.g., Fincher's Motion at 3; Gannon's Motion at 3. The officers' arguments in favor of dismissal of the excessive force claims, as well as their arguments regarding qualified immunity, turn on these affidavits, which were not referred to in the plaintiffs' complaint. See generally Complaint. Additionally, the plaintiffs offer support in the form of affidavits and voluntary statements of eyewitnesses and forensic experts, as well as the autopsy report. See generally Plaintiffs' Appendix. The parties' reliance on these outside documents requires Fincher's and Gannon's motions to be viewed solely as motions for summary judgment, as the motions relate to the excessive force claim and the issue of qualified immunity. Therefore, the court will proceed using the standard for summary judgment in this circuit.
b. Evidentiary Burdens on Motion for Summary Judgment
Summary judgment is proper when the pleadings and evidence before the court show that no genuine issue exists as to any material fact and that the moving parties are entitled to judgment as a matter of law. FED. R. CIV. P. 56(c). The movants make such a showing by informing the court of the basis of their motion and by identifying the portions of the record which reveal there are no genuine material fact issues. Celotex Corporation v. Catrett, 477 U.S. 317, 323 (1986). "[T]he substantive law will identify which facts are material." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A genuine issue of material fact exists "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Id. The pleadings, depositions, admissions, and affidavits, if any, must demonstrate that no genuine issue of material fact exists. FED. R. CIV. P. 56(c).
The disposition of a case through summary judgment "reinforces the purpose of the Rules, to achieve the just, speedy, and inexpensive determination of actions, and, when appropriate, affords a merciful end to litigation that would otherwise be lengthy and expensive." Fontenot v. Upjohn Company, 780 F.2d 1190, 1197 (5th Cir. 1986).
Once the movants make this showing, the nonmovants must then direct the court's attention to evidence in the record sufficient to establish that there is a genuine issue of material fact for trial. Celotex, 477 U.S. at 323-24. To carry this burden, the "opponent must do more than simply show . . . some metaphysical doubt as to the material facts." Matsushita Electric Industrial Co., Ltd. v. Zenith Radio Corporation, 475 U.S. 574, 586 (1986). Instead, the nonmovants must show that the evidence is sufficient to support a resolution of the factual issue in their favor. Anderson, 477 U.S. at 249.
While all of the evidence must be viewed in a light most favorable to the nonmovants, id. at 255 (citing Adickes v. S.H. Kress Company, 398 U.S. 144, 158-59 (1970)), neither conclusory allegations nor unsubstantiated assertions will satisfy the nonmovants' summary judgment burden. Calbillo v. Cavender Oldsmobile, Inc., 288 F.3d 721, 725 (5th Cir. 2002) (citing Little v. Liquid Air Corporation, 37 F.3d 1069, 1075 (5th Cir. 1994) (en banc)). Summary judgment in favor of the movants is proper if, after adequate time for discovery, the motion's opponents fail to establish the existence of an element essential to their case and as to which they will bear the burden of proof at trial. Celotex, 477 U.S. at 322-23.
2. Qualified Immunity
The threshold question the court must answer with regard to the claims against Gannon and Fincher is whether they are entitled to qualified immunity. See Mangieri v. Clifton, 29 F.3d 1012, 1015 (5th Cir. 1994) (citing Siegert v. Gilley, 500 U.S. 226, 231-33 (1991), and Brewer v. Wilkinson, 3 F.3d 816, 820 (5th Cir. 1993), cert. denied, 510 U.S. 1123 (1994)).
"Qualified immunity shields an officer from suit when he makes a decision that, even if constitutionally deficient, reasonably misapprehends the law governing the circumstances he confronted." Brosseau v. Haugen, ___ U.S. ___, 125 S.Ct. 596, 599 (2004) (citing Saucier v. Katz, 533 U.S. 194, 206 (2001)); see Mace v. City of Palestine, 333 F.3d 621, 623 (5th Cir. 2003). The existence of qualified immunity is a policy decision which weighs the vindication of individuals' rights against society's needs for effective government. See Elliott v. Perez, 751 F.2d 1472, 1476-78 (5th Cir. 1985). The need for effective government outweighs individual rights to this extent — some justified claims will necessarily be dismissed in the interest of freeing public officials "to exercise their duties and functions without fear of having their attentions distracted by the subsequent claims of unhappy or unsuccessful litigants." Id. at 1478.
"Qualified immunity operates . . . to protect officers from the sometimes 'hazy border between excessive and acceptable force." Saucier, 533 U.S. at 206 (citing Priester v. Riviera Beach, 208 F.3d 919, 926-27 (11th Cir. 2000)). "The qualified immunity defense 'gives ample room for mistaken judgments' by protecting 'all but the plainly incompetent or those who knowingly violate the law.'" Gibson v. Rich, 44 F.3d 274, 277 (5th Cir. 1995) (citation omitted). Government officials are entitled to the defense of qualified immunity "if their decision was reasonable, albeit mistaken." Lampkin v. City of Nacogdoches, 7 F.3d 430, 435 (5th Cir. 1993) (per curiam) (citation omitted), cert. denied, 511 U.S. 1019 (1994). Generally, the court is to determine as a matter of law if an officer's acts were reasonable. Mangieri, 29 F. 3d at 1015-16; Lampkin, 7 F.3d at 434-35.
When determining the officers' claims of qualified immunity, this court must employ a two step analysis. Mace, 333 F.3d at 623. First, this court must determine whether the plaintiffs have sufficiently pleaded facts that, if proven to be true, show that Fincher's and/or Gannon's conduct violated a clearly established constitutional right. See id. Second, if the court determines that there is a constitutional violation, the court must consider whether "it would be clear to a reasonable officer that his conduct was unlawful in the situation he confronted." Id. at 623-24. If the court determines that it would not be clear to a reasonable officer in Gannon's and/or Fincher's situation, the officers are entitled to immunity.
If a factual dispute exists that is material to the resolution of the questions of whether the officers acted in an objectively reasonable manner, the issue of qualified immunity may be resolved by the fact finder. Lampkin, 7 F.3d at 435. A motion for summary judgment on a claim of qualified immunity requires the court to "highlight evidence that, if interpreted in the light most favorable to the plaintiffs, identifies conduct by the defendant that violated clearly established law." Castillo v. City of Weslaco, 369 F.3d 504, 506 (5th Cir. 2004). If summary judgment is denied, the court should include in its analysis "'the factual scenario it believes emerges from viewing the summary judgment evidence in the light most favorable' to the plaintiff[s]." Id. at 507. By analyzing such a factual scenario, the court is not issuing a finding or opinion as to the facts surrounding the incident. Rather, the court is merely describing one potential course of events and conduct that, if proved true, would preclude the defendants' qualified immunity claims. See id.
a. Constitutional Violation
The court's initial inquiry in determining the officers' qualified immunity claims is whether the officers violated Hernandez' right to be free from excessive force. See Mace, 333 F.3d at 624. "To bring a § 1983 excessive force claim under the Fourth Amendment, a plaintiff must first show that he was seized." Flores v. City of Palacios, 381 F.3d 391, 396 (5th Cir. 2004). "Next he must show that he suffered (1) an injury that (2) resulted directly and only from the use of force that was excessive to the need and that (3) the force used was objectively unreasonable." Id."An officer seizes a person when he, 'by means of physical force or show of authority, has in some way restrained the liberty of a citizen.'" Id. (citing Terry v. Ohio, 392 U.S. 1, 19 n. 16 (1968) (emphasis added in Flores)). The facts, as presented by both parties, clearly establish that Gannon and Fincher used physical force to restrain Hernandez for the purpose of effecting his arrest. Therefore, there is no disputed issue of fact as to whether Hernandez was seized.
After performing an autopsy on Hernandez' body, the Dallas County Medical Examiner concluded that Hernandez died as a "result of blunt force injuries" and classified the manner of his death as a homicide. Autopsy Report on Gilbert Hernandez ("Autopsy Report") at 7, Gannon's Appendix at 37. It would follow that a reasonable fact finder could determine that Hernandez suffered injuries at the hands of Gannon and Fincher, and his death resulted directly and only from the force used by the officers in effecting his arrest. However, to completely satisfy the second element, the plaintiff must show that the force that caused his death was "excessive to the need." Flores, 381 F.3d at 396. Therefore, to survive summary judgment there must be a disputed, genuine issue of material fact as to whether the force used by the officers was excessive to the need at the time they apprehended and subdued Hernandez.
In their motions, which raise identical arguments, the officers assert that they each used "no more force than necessary to stop Hernandez." Fincher's Motion at 5; Gannon's Motion at 5. Both officers argue, "[t]here is no evidence that Hernandez never resisted arrest. Instead, the evidence shows Hernandez, who was suspected to be involved in a drug transaction, did resist, and did so in a known drug crime area. These factors increased the degree of tension and danger to the officers, given the known connection between drug crimes and violence." Fincher's Motion at 5; Gannon's Motion at 5.
In support of this argument, both Gannon and Fincher submitted affidavits in which they describe the incident. The relevant part of Gannon's affidavit states:
Fincher and I both identified ourselves as peace officers to Mr. Hernandez in a loud voice. Mr. Hernandez turned and waived [sic] to us and then turned around and proceeded to walk northbound. Fincher and I again instructed Mr. Hernandez to stop and identified ourselves as police officers in a loud voice. Mr. Hernandez proceeded to place his right hand in his pocket and fled eastbound on foot. I proceeded to chase Mr. Hernandez on foot and Detective Fincher returned to the vehicle to pursue Mr. Hernandez.
Mr. Hernandez ran approximately 200 yards east of the location into a wooded field with very high grass. Mr. Hernandez stumbled and fell, and I was able to catch up to Mr. Hernandez. Mr. Hernandez immediately placed his left arm under him, and I believed that he could be reaching for a weapon in his waistband. Mr. Hernandez struggled with me, kicking and refusing to give his left arm, as I was attempting to get his left arm out from under him. Detective Fincher approached a short time later and as he approached he was kicked by Mr. Hernandez. Detective Fincher attempted to assist me by getting Mr. Hernandez's left arm out from under his body, however, [Hernandez] continued to resist by kicking and struggling with us. Mr. Hernandez refused to give his left arm up from underneath his body, and therefore, Detective Fincher struck Mr. Hernandez twice in the back of the left shoulder area in an attempt to get Mr. Hernandez to remove his arm from underneath him.
Detective Fincher was finally able to gain control of Mr. Hernandez's left arm and cuffed Mr. Hernandez behind his back.
Affidavit of Bradley W. Gannon ("Gannon's Affidavit") ¶¶ 4-6, Gannon's Appendix at 2-3.
Fincher's affidavit provides the following description of the incident:
Sgt. Gannon gave chase on foot. I followed in the unmarked patrol vehicle. The male ran into a high grassy area, began to stumble, and fell. Sgt. Gannon was right behind him and went down with him. I jumped out of the vehicle and ran to help Sgt. Gannon. As I got closer, I could see that the male was face down and struggling with Sgt. Gannon. The man began kicking at me, and was moving his left arm under his body.
I did not know what he was trying to do with his left arm. I was afraid he was trying to grab for a weapon. When I reached him, I went down to my knees and tried to pull his left arm out from under his body and away from whatever he was trying to reach. He continued to struggle, kicking at us. I tried to stun his arm by striking him in the shoulder with my fist. He continued to resist, and I struck him a second time in the shoulder. After doing so, I was able to pull his left arm behind his back and put handcuffs on him. We were then able to stand the subject up, [at] which time he continued to struggle.
Affidavit of Detective Charles Fincher ("Fincher's Affidavit") ¶¶ 5-6, Fincher's Appendix at 3.
In their response to Fincher's motion, the plaintiffs moved to strike Fincher's affidavit because he failed to attach sworn or certified copies of documents referred to in the affidavit. Plaintiffs' Response to Fincher's Motion at 17-18. However, a review of Fincher's affidavit reveals that the portions relied upon by the court are based on Fincher's personal knowledge. Therefore, there is no need to strike Fincher's affidavit from the record. See Fed.R.Civ.P. 56(e).
In response to Fincher's and Gannon's motions, the plaintiffs have provided the court with affidavits and voluntary statements of several eyewitnesses to the incident. Plaintiff's Appendix at 9-18. In reply to the plaintiffs' response, Fincher and Gannon each assert that the testimony in these documents is contradictory and, thus, cannot be used to create a genuine issue of material fact. Reply Brief in Support of Charles Fincher's Motion to Dismiss, or, in the Alternative, for Summary Judgment ("Fincher's Reply") at 4-5; Reply Brief in Support of Brad Gannon's Motion to Dismiss, or, in the Alternative, for Summary Judgment ("Gannon's Reply") at 4. The officers cite Doe v. Dallas Independent School District, 220 F.3d 380 (5th Cir. 2000), cert. denied, 531 U.S. 1073 (2001), in support of this position. Doe, however, addresses the situation where a single witness recants, or contradicts, earlier testimony in an attempt to create a "sham" issue of material fact. Doe, 220 F.3d at 386. In this case, Fincher and Gannon argue that because the testimony of the plaintiffs' witnesses is not entirely consistent, any issue of fact raised by that testimony is a sham. Fincher's Reply at 4-5; Gannon's Reply at 4. While any inconsistency may affect the weight given the testimony by the factfinder, it is not grounds for striking the testimony. It is not unusual for multiple witnesses' recollection of a single event to vary somewhat. Therefore, the court will consider each witness' testimony in determining whether a genuine issue of material fact exists.
The plaintiffs offer the affidavit of Oswaldo Xolalpa ("Xolalpa"), an eyewitness to the incident, in opposition to the officers' motions. Affidavit of Oswaldo Xolalpa ("Xolalpa Affidavit"), Plaintiffs' Appendix at 9-12. Xolalpa states that he observed the incident from his workplace. Id. at 9. According to Xolalpa's affidavit, Gannon and Fincher pulled up behind Hernandez in an unmarked vehicle. Id. at 10. Gannon proceeded to get out of the vehicle and chase Hernandez on foot. Id. Xolalpa states that he did not hear either Fincher or Gannon identify themselves as police officers. Id. According to the affidavit, after entering a field across the street from Xolalpa's workplace:
[Gannon] tripped [Hernandez] who subsequently fell down. [Hernandez] did not struggle or fight back in anyway at any time after he fell down. [Gannon] kicked [Hernandez] at least one (1) time. [Gannon] then straddled [Hernadez'] back and began beating [Hernandez] with his fists. [Gannon] struck [Hernandez] three (3) or four (4) times. [Gannon] handcuffed [Hernandez].Id.
After the events above transpired, according to Xolalpa's affidavit, "[Fincher] ran over to [Hernandez]. [Fincher] kicked [Hernandez] two (2) to three (3) times in the side. [Fincher] then repeatedly struck [Hernandez] with his fist." Id. Xolalpa states that he does not know how many times Fincher struck Hernandez with his fist. Id.
In opposition to the officers' motions, the plaintiffs also offer the voluntary statement of Anthony Wayne Parks ("Parks"), an eyewitness who works at the same place of business as Xolalpa. Voluntary Statement of Anthony Wayne Parks ("Parks' Statement"), Plaintiffs' Appendix at 13-14. This statement was taken by Sergeant Kenny Ray of the Texas Rangers, who apparently investigated the incident. Id. at 14. In his statement, Parks states that he stood approximately thirty yards from the scene of the incident. Id. at 13. Parks states that he could not hear anything that Gannon or Hernandez said, due to traffic noise. Id. According to Parks' statement, the first thing that he saw was Gannon chasing Hernadez on foot. Id. After Hernandez ran into a field, according to Parks, "[Gannon] caught [Hernandez]. [Hernandez] was placed on the ground with [Gannon] sitting on [Hernandez'] back." Id. Parks testifies that he never saw Gannon strike or kick Hernandez. Id.
Parks does not identify Gannon, Fincher, or Hernandez by name in his statement. However, when analyzing his statement in light of Xolalpa's, Fincher's, and Gannon's affidavits, "the subject," as used in the statement, clearly identifies Hernandez, "Officer #1" clearly identifies Gannon, and "Officer #2" clearly identifies Fincher.
Parks goes on to state that after Gannon "had custody of" Hernandez, Fincher "ran over to [Hernandez]" and "kicked [Hernandez] at least two (2) times. [Fincher] then struck [Hernandez] with his ([Fincher's]) fist, two (2) to four (4) times." Id. at 14. Parks further states that neither Fincher or Gannon ever drew their weapons or hit Hernandez with "any type of object." Id.
The plaintiffs also offer the voluntary statement of Felipe Rosas Sisneros ("Sisneros"), which was also made to Sergeant Ray of the Texas Rangers. Voluntary Statement of Felipe Rosas Sisneros ("Sisneros' Statement"), Plaintiffs' Appendix at 15-16. Sisneros also works at the same place of business as Parks and Xolalpa. Sisneros states that he saw Gannon chase Hernandez into a "wooded area." Id. at 15. Sisneros states that Gannon tripped Hernandez, kicked him in the ribs once, placed his knee in Hernandez' back, and struck him with his fists twice. Id. Sisneros further states that Fincher then ran over to the scene, placed his knee in Hernandez' back, and struck him with his fist five times. Id. Like Parks, Sisneros states that neither officer drew his weapon, nor did either officer strike Hernandez with any type of object. Id.
Sisneros also does not identify Hernandez, Gannon, or Fincher by name. However, using the same reasoning above, the court interprets his statement in the same manner as Parks' Statement.
Finally, the plaintiffs introduce the voluntary statement of Xolalpa, which was also made to Sergeant Ray. Voluntary Statement of Oswaldo Xolalpa, Plaintiffs' Appendix at 17-18. However, a review of Xolalpa's voluntary statement reveals that it is substantially the same as his affidavit. Thus, the court need not discuss the description of the events contained in Xolalpa's voluntary statement.
As stated above, on a motion for summary judgment, the court must view all facts in the light most favorable to the plaintiffs as opponents of the motion. See Anderson, 477 U.S. at 255. The court has taken into consideration the autopsy report (which concluded that Hernandez' death was a homicide caused by blunt force injuries), the defendants' accounts of the incident, and the accounts given by the three eyewitnesses. Viewing this evidence in the light most favorable to the plaintiffs, it appears to the court that there are disputed issues of fact as to whether Hernandez' death was caused by force excessive to the need at the time of his arrest. Therefore, the court will proceed to the final element of the alleged constitutional violation of excessive force, whether the force used by Gannon and Fincher was objectively unreasonable. See Flores, 381 F.3d at 396.
The parties have objected to certain summary judgment evidence submitted by their opposition. Specifically, Fincher and Gannon object to the plaintiffs' submission of affidavits from two experts. See, e.g., Gannon's Reply at 7-8; Fincher's Reply at 8. The plaintiffs, on the other hand, object to Fincher's and Gannon's submission of the affidavit of the officers' expert, Albert Rodriguez. Brief in Support of Plaintiffs' Response to Defendant Charles Fincher's Motion to Dismiss or, in the Alternative, for Summary Judgment and Motion to Strike ("Plaintiff's Response to Fincher's Motion") at 18-19. The parties have moved to strike each of these affidavits. The court has not relied upon this evidence in making its determination of the motions before it; therefore, the court does not express any opinion on this evidence at this time. Accordingly, the motions to strike discussed in this footnote are denied as moot.
In determining whether a constitutional violation occurred, the court's final inquiry is "whether the officers' actions are 'objectively reasonable' in light of the facts and circumstances confronting them, without regard to their underlying intent or motivation." Graham v. Connor, 490 U.S. 386, 397 (1989). In other words, "[i]f an officer reasonably, but mistakenly, believed that a suspect was likely to fight back, for instance, the officer would be justified in using more force than in fact was needed." Saucier, 533 U.S. at 205. "[T]he reasonableness of the [officers'] belief as to the appropriate level of force should be judged from an on-scene perspective," rather than through the use of "'20/20 vision of hindsight.'" Id. (citing Graham, 490 U.S. at 393, 396).
As to Gannon, it is undisputed that he chased Hernandez through the field, and was the first to catch him. When a suspect is actively resisting arrest or attempting to evade arrest by flight, the use of more force than is needed is not necessarily unreasonable. See Saucier, 533 U.S. at 205. However, disputed issues of fact exist as to whether Hernandez was resisting arrest when Gannon caught him. According to Gannon, Hernandez was kicking and struggling with him after he caught him. Gannon's Affidavit at 2-3. However, Xolalpa testified that, once Gannon caught up to Hernandez, Hernandez offered no resistance, and Gannon kicked him and struck him several times with his fists. Xolalpa Affidavit ¶ 6. Generally, a fleeing suspect's constitutional rights are not violated when an officer uses a level of force such as that used by Gannon here, if the suspect is actively resisting or fleeing from the officer. See Saucier, 533 U.S. at 205. While utilizing only one kick and several blows with the fist is arguably a reasonable use of force on a fleeing suspect who continues to resist, if the suspect has submitted and ceases to resist, that same level of force may be unreasonable. If the facts alleged are viewed in the light most favorable to the plaintiffs, a factual scenario exists that, if proved, would constitute an unreasonable use of excessive force. Specifically, if Hernandez was caught and passively submitted to Gannon, and Gannon then kicked him and struck him several times, the amount of force used by Gannon may be unreasonable. If this scenario is proved true, Gannon's acts would constitute a violation of Hernandez' constitutional right to be free from the use of excessive force.
"A denial of summary judgment based on a material factual dispute would . . . be appropriate if there are 'underlying historical facts in dispute that are material to the resolution of the questions whether the defendants acted in an objectively reasonable manner.'" Mangieri, 29 F.3d at 1016 (quoting Lampkin, 7 F.3d at 430).
As to Fincher, disputed issues of fact exist as to whether his actions were objectively reasonable. Xolalpa and Parks stated that Fincher kicked and/or struck Hernandez after he was already handcuffed, or in "custody." Xolalpa Affidavit, Plaintiffs' Appendix at 10; Parks' Statement, Plaintiffs' Appendix at 13. Fincher's and Gannon's affidavits, by contrast, state that Fincher only struck Hernandez twice in the shoulder, and the two blows came prior to the use of handcuffs. Fincher's Affidavit ¶¶ 5-6; Gannon's Affidavit ¶¶ 4-6. Thus, if the facts are viewed in the light most favorable to the plaintiffs, a factual scenario exists that, if proved true, would establish the unreasonable use of excessive force by Fincher. Specifically, if Fincher came upon Gannon and Hernandez after Gannon had already subdued and handcuffed Hernandez, repeated kicks and or blows with the fist by Fincher would constitute an unreasonable use of excessive force. Therefore, as to Fincher, material issues of fact exist as to whether he violated Hernandez' clearly established constitutional right to freedom from the use of excessive force.
See n. 7 above.
b. Violation Clear to a Reasonable Officer
The second question of the qualified immunity inquiry is "whether it would be clear to a reasonable officer that his conduct was unlawful in the situation he confronted." Mace, 333 F.3d at 623-24. This inquiry is distinct from the objective reasonableness element of the excessive force claim discussed above. Saucier, 533 U.S. at 197, 204-05.
The qualified immunity inquiry . . . has a further dimension. The concern of the immunity inquiry is to acknowledge that reasonable mistakes can be made as to the legal constraints on particular police conduct. It is sometimes difficult for an officer to determine how the relevant legal doctrine, here excessive force, will apply to the factual situation the officer confronts. An officer might correctly perceive all of the relevant facts but have a mistaken understanding as to whether a particular amount of force is legal in those circumstances. If the officer's mistake as to what the law requires is reasonable, however, the officer is entitled to the immunity defense.Id. at 205.
Thus, in the instant case the court must determine whether it would be clear to a reasonable officer that Gannon's and Fincher's alleged conduct was unlawful given the circumstances each officer confronted. See Mace, 333 F.3d at 623-24. In making the determination the court will utilize the factual scenarios discussed in the constitutional violation inquiry above.
Specific to Gannon, the court must determine whether a reasonable officer would find kicking a once-fleeing suspect and striking the suspect multiple times with the fist, after the suspect has ceased his flight and submits to the officer, to be unlawful conduct. Concerning Fincher, the inquiry is whether a reasonable officer would deem kicking and striking a suspect multiple times with the fist, after another officer has placed the suspect in custody, unlawful conduct.
Considering the latter scenario first, most reasonable law enforcement officers would consider kicking and striking a handcuffed subject unlawful conduct. Although Hernandez was previously fleeing, according to the testimony of the eyewitnesses, Hernandez was detained before Fincher approached. While certainly frustrating to the officer, a suspect's unsuccessful attempt to flee does not afford an officer the justification for kicking and/or striking the suspect once he is in custody. Any reasonable officer would deem that conduct unlawful. Thus, Fincher's alleged actions were not objectively reasonable. Accordingly, at this stage of the case, Fincher cannot be afforded the protection of qualified immunity.
Fincher may still assert qualified immunity at trial. Harper v. Harris County, Texas, 21 F.3d 597, 601 (5th Cir. 1994) (per curiam).
As for Gannon, while force is allowed when an officer is apprehending a fleeing suspect, once a suspect has submitted to an officer, the continued use of that same degree of force is unreasonable. If the fact finder resolves the factual dispute regarding Gannon's actions in favor of the plaintiffs, Gannon may not be afforded the protection of qualified immunity. Thus, a resolution of the inquiry into the objective reasonableness of Gannon's actions cannot be made at this time.
Gannon may, of course, assert qualified immunity at trial. Harper, 21 F.3d at 601.
3. Excessive Force Claims
Gannon and Fincher also argue that summary judgment is appropriate on the plaintiffs' claims of excessive force. Gannon's Motion at 7; Fincher's Motion at 8. The summary judgment evidence regarding the plaintiffs' excessive force claims is discussed above in the qualified immunity analysis. For the same reasons discussed above, genuine issues of material fact exist as to whether the force used by Gannon and/or Fincher was excessive to the need and as to whether such use of force, if excessive, was unreasonable. Therefore, Gannon's and Fincher's motion for summary judgment on the excessive force claim must be denied.4. Section 1985 Claims
In their motions, Fincher and Gannon each seek dismissal of the plaintiffs' § 1985 claims. Fincher's Motion at 1; Gannon's Motion at 1-2. The motions simply state that the § 1985 claims should be dismissed because the plaintiffs "have failed to allege all of the required elements of [a § 1985] claim." Id. In response, the plaintiffs assert that they have adequately pleaded § 1985 claims against Fincher and Gannon in their complaint. Plaintiffs' Response to Fincher's Motion at 19-20; Brief in Support of Plaintiffs' Response to Defendant Brad Gannon's Motion to Dismiss, or in the Alternative, for Summary Judgment and Motion to Strike at 20.
"To state a claim under 42 U.S.C. § 1985(3), a plaintiff must allege: (1) a conspiracy involving two or more persons; (2) for the purpose of depriving, directly or indirectly, a person or class of persons of the equal protection of the laws; and (3) an act in furtherance of the conspiracy; (4) which causes injury to a person or property, or a deprivation of any right or privilege of a citizen of the United States." Hillard v. Ferguson, 30 F.3d 649, 652-53 (5th Cir. 1994). Furthermore, "in order to assert a claim under § 1985(3), a plaintiff must allege some class-based animus." Burns-Toole v. Byrne, 11 F.3d 1270, 1276 (5th Cir.), cert. denied, 512 U.S. 1207 (1994).
In the complaint, the plaintiffs assert that Gannon and Fincher "conspired to deprive the decedent, Gilbert Hernandez of his constitutional right to be free from the use of excessive force. . . ." Complaint at 6. The plaintiffs further assert that the two officers acted in furtherance of the alleged conspiracy by beating and kicking Hernandez, and that these acts resulted in a ruptured liver and the eventual death of Hernandez. Id. Finally, the plaintiffs assert that Fincher and Gannon's actions were "motivated by the fact that [Hernanez] was Hispanic. . . ." Id.
It appears to the court that the plaintiffs have adequately asserted § 1985 claims against Fincher and Gannon. Therefore, Fincher's and Gannon's motions to dismiss these claims are denied.
III. CONCLUSION
For the reasons state above, the City's motion to dismiss is DENIED in part and GRANTED in part and the County's motion to dismiss is DENIED in part and GRANTED in part. Accordingly, the plaintiffs' failure to train claims against the City and the County are DISMISSED. Furthermore, Fincher's motion to dismiss and alternative motion for summary judgment are DENIED, and Gannon's motion to dismiss and alternative motion for summary judgment are DENIED. Additionally, the plaintiffs' motion to strike the affidavits of Fincher and Commander Albert Rodriguez are DENIED, and Fincher's and Gannon's motions to strike certain of the plaintiffs' summary judgment evidence are DENIED. The effect of this memorandum order on the court's October 8, 2004 order (as modified by the court's October 27, 2004 order) staying discovery will be addressed in a separate order.
SO ORDERED.