Opinion
Civil No. 3:01-CV-0217-H.
September 26, 2001.
MEMORANDUM OPINION AND ORDER
Before the Court are (1) Defendants' Motion to Dismiss for Spoilation of Evidence; (2) Defendants' Motion for Summary Judgment, both filed June 18, 2001; (3) Plaintiff's Response to the Motion for Summary Judgment, filed July 9, 2001; (4) Defendants' Reply to Plaintiff's Response; and, (5) Defendants' Objections to Plaintiff's Summary Judgment Evidence, both filed July 24, 2001. Defendants' Objections are SUSTAINED and the Court proceeds in its analysis disregarding the inappropriate portions of Plaintiff's Affidavit listed as Plaintiff's Exhibit A. Any objections raised to Defendants' affidavit evidence in Plaintiff's Response are OVERRULED.
I. BACKGROUND
Plaintiff Dich Hoang is a parishioner of Our Lady of Perpetual Help Catholic Church ("the Church") in Garland, Texas. Prior to August 15, 1999, the Church employed Defendant Chris Hostrup, a Garland police officer, to direct traffic on Sunday mornings as an independent contractor. Also prior to August 15, 1999, Father Augustine Nguyen was replaced as pastor by Father Dominic Dinh. A large percentage of the Church's congregation opposed this change, including Hoang. On the morning of August 15, 1999, many Church members were protesting in the Church parking lot and across the street for the return of Father Augustine Nguyen. Father Dominic Dinh requested Officer Hostrup's assistance in clearing the Church parking lot and directing the approximately 200 protestors across the street. Another member of the Church aided Officer Hostrup in clearing the parking lot by relaying instructions in Vietnamese. Officer Hostrup repeatedly told protestors to leave the parking lot, and those instructions were translated to Vietnamese. Hoang acknowledges his presence in the parking lot during this time, even that he was holding a sign and a leaflet, but denies that he heard the order to move across the street.
The situation in the parking lot continued to deteriorate out of control and Officer Hostrup eventually called the Garland Police Department for assistance. Defendant K.W. Murphy, another Garland police officer, was dispatched. Officer Murphy joined Officer Hostrup instructing the protestors to clear the parking lot. The officers came into contact with Hoang, holding a sign and leaflet. Hoang was not confrontational with the Defendants, yet he was arrested for trespassing. While arresting him, Defendants' roughly grabbed Hoang's arms and pinned him to a vehicle. Also as he was being arrested, a large number of protestors began assaulting the police officers to effectuate Hoang's release. The officers were able to handcuff Hoang, and transport him to the Garland detention facility. The charges against Hoang were eventually dismissed. Hoang suffered injury to his wrists as a result of being handcuffed.
Hoang filed suit in this Court on January 31, 2001 alleging violations of his First, Fourth, and Fourteenth Amendment rights in contravention of 28 U.S.C. § 1983. Plaintiff specifically alleges violation of his right to peacefully protest, racial discrimination, false arrest, illegal incarceration, malicious prosecution, and excessive use of force. Plaintiff also brings tort claims of false arrest, battery, assault, and false imprisonment under the Texas common law. Defendants raise the defenses of qualified and official immunity and seek attorneys' fees pursuant to 42 U.S.C. § 1988.
II. SUMMARY JUDGMENT STANDARD
Summary judgment is appropriate where the facts and law as represented in the pleadings, affidavits and other summary judgment evidence show that no reasonable trier of fact could find for the nonmoving party as to any material fact. See FED. R. CIV. P. 56; Lujan v. National Wildlife Federation, 497 U.S. 871, 888 (1990); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251 (1986); Celotex Corp. v. Catrett, 477 U.S. 317, 323-25 (1986); Innovative Database Sys. v. Morales, 990 F.2d 214 (5th Cir. 1993). "The moving party bears the initial burden of identifying those portions of the pleadings and discovery in the record that it believes demonstrate the absence of a genuine issue of material fact, but is not required to negate elements of the nonmoving party's case." Lynch Properties, Inc. v. Potomac Ins. Co. of Ill., 140 F.3d 622, 625 (5th Cir. 1998) (citing Celotex, 477 U.S. at 322-25).
If the movant meets its burden, the nonmovant must go beyond the pleadings and designate specific facts showing that a genuine issue of material fact exists for trial. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986); Edwards v. Your Credit, Inc., 148 F.3d 427, 431 (5th Cir. 1998). A party opposing summary judgment may not rest on mere conclusory allegations or denials in its pleadings unsupported by specific facts presented in affidavits opposing the motion for summary judgment. See FED. R. CIV. P. 56(e); Lujan, 497 U.S. at 888; Hightower v. Texas Hosp. Assn., 65 F.3d 443, 447 (5th Cir. 1995). In determining whether genuine issues of fact exist, "[f]actual controversies are construed in the light most favorable to the nonmovant, but only if both parties have introduced evidence showing that a controversy exists." Lynch, 140 F.3d at 625; see also Eastman Kodak v. Image Technical Services, 504 U.S. 451 (1992). However, in the absence of any proof, the Court will not assume that the nonmoving party could or would prove the necessary facts. See Lynch, 140 F.3d at 625. "If the record, taken as a whole, could not lead a rational trier of fact to find for the nonmoving party, there is no genuine issue for trial." Friou v. Phillips Petroleum Co., 948 F.2d 972, 974 (5th Cir. 1991).
With these summary judgment standards in mind, the Court turns to Defendants' summary judgment motion.
III. IMMUNITY STANDARDS
Defendants move for summary judgment on immunity grounds. A brief explanation of the relevant immunity standards is beneficial to the Court's analysis.
A. Qualified Immunity
This case involves the arrest of Plaintiff by Defendants Hostrup and Murphy. A police officer in the process of arresting a suspect is acting within his discretionary authority as a law enforcement official, and thus may be shielded from liability by the defense of qualified immunity. See Trejo v. Perez, 693 F.2d 482, 487 n. 9 (5th Cir. 1982).
In order to defeat Defendants' qualified immunity defense, Plaintiff must show that, at the time of the incident, Hostrup and Murphy violated "clearly established law of which a reasonable person would have known." Harlow v. Fitzgerald, 458 U.S. 800, 818 (1982). Government officials can assert qualified immunity if a reasonable officer under the same circumstances would not have known their conduct was illegal. See Anderson v. Creighton, 483 U.S. 635 (1987); Malley v. Briggs, 475 U.S. 335 (1986). Plaintiff's complaint must "state with factual detail and particularity the basis for the claim which necessarily includes why the defendant-official[s] cannot successfully maintain the defense of immunity." See Babb v. Dorman, 33 F.3d 472, 477 (5th Cir. 1994). Conclusory statements are insufficient. See id. at 476-77. In analyzing a claim of qualified immunity, the Court must determine (1) whether plaintiff has stated a violation of a constitutional or statutory right, and (2) was that right clearly established. See Seigert v. Gilley, 500 U.S. 226, 232 (1991). If the plaintiff meets this burden, the Court determines whether the defendants' conduct was objectively reasonable. See Mangieri v. Clifton, 29 F.3d 1012, 1016 (5th Cir. 1992). However, even officers who "reasonably but mistakenly conclude that probable cause is present" are entitled to immunity. Babb, 33 F.3d at 477. Immunity must be recognized if officers of reasonable competence could disagree on whether facts known by the officers could reasonably lead them to conclude that probable cause was present to seize Plaintiff. See Malley, 475 U.S. at 341.
B. Official Immunity
Texas grants government officials official immunity from suit for matters arising from the performance of their discretionary duties if they are: (1) acting within the scope of their authority, and (2) acting in good faith. See Hart v. O'Brien, 127 F.3d 424, 450 (5th Cir.), cert. denied, 525 U.S. 1103 (1999) (citing City of Lancaster v. Chambers, 883 S.W.2d 650, 653 (Tex. 1994)), abrogation on other grounds recognized by Spivey v. Robertson, 210 F.3d 550 (5th Cir. 2000). This standard is similar to that required for qualified immunity, with the important difference that "official immunity does not incorporate the requirement that the plaintiff show the violation of a clearly established right. Rather, official immunity hinges on whether the official's activities were undertaken in good faith, that is, whether they were objectively reasonable." Id.
III. ANALYSIS OF FEDERAL CLAIMS
A. False Arrest
Freedom from illegal arrest is a clearly established constitutional right. See, e.g., Sorenson v. Ferrie, 134 F.3d 325, 328 (5th Cir. 1998). The key issue in establishing false arrest is proving the arresting officers lacked probable cause. See id. "Probable cause exists when the totality of facts and circumstances within a police officer's knowledge at the moment of arrest are sufficient for a reasonable person to conclude that the suspect had committed or was committing an offense." United States v. Levine, 80 F.3d 129, 132 (5th Cir.), cert. denied, 519 U.S. 824 (1996). "Probable cause does not require proof beyond a reasonable doubt, but only a showing of the probability of criminal activity." Hart, 127 F.3d at 444. If probable cause is even "arguable," then immunity will be recognized. See id.
Plaintiff argues he was never directed to leave the Church's parking lot as required by TEX. PENAL CODE ANN. § 30.05 (Vernon 1994). Plaintiff also argues that Garland's trespass ordinance, which does not require notice to depart before arrest, is preempted by TEX. PENAL CODE ANN. § 1.08 (Vernon 1994). The Court finds this latter argument to be without merit. As such, the Court will evaluate plaintiff's claim in the context of both the Texas statute and the Garland ordinance.
GARLAND, TEX., CODE OF ORDINANCES § 26.06.
P Plaintiff cites no authority indicating the City's ordinance has been found invalid. City ordinances are presumed valid unless they are unreasonable and arbitrary. See Quick v. City of Austin, 7 S.W.3rd 109, 115 (Tex. 1998). Plaintiff has made no allegation nor offered any proof that the ordinance is unreasonable or arbitrary. Given this presumption, and the highly involved legal analysis that would be required to establish or deny preemption, Plaintiff cannot argue that the invalidity of the ordinance was "clearly established law" at the time of his arrest. See Harlow, 458 U.S. at 818. Thus, defendants' reliance on the ordinance at the time of plaintiff's arrest was not unreasonable. See Malley, 475 U.S. at 341; Babb, 33 F.3d at 477.
Murphy and Hostrup's account of the events at the Church on August 15, 1999 is largely uncontested, in relevant part, by the Plaintiff. Hoang does not contest that Father Dominic was apparently in charge that morning, nor does any of Hoang's evidence challenge Defendants' assertion that Father Dominic both informed Officer Hostrup that he wanted the protestors out of the Church's parking lot and requested Hostrup's assistance. Hoang claims he was never personally told to leave the parking lot, and the Court will accept that as true for summary judgment purposes. Yet, that fact is largely irrelevant to the Court's inquiry. The Court must evaluate the objective reasonableness of the Defendants' action in light of how the situation appeared to the Defendants. See Glenn v. City of Tyler, 242 F.3d 307, 312 (5th Cir. 2001); Rowland v. Perry, 41 F.3d 167, 172-73 (4th Cir. 1994).
Hoang does not offer evidence to contradict Defendants' assertion that the protestors were repeatedly told to leave the parking lot. While Hoang indicates that the protest was peaceful when he arrived, he offers no evidence on the circumstances that led Officer Hostrup to call for back-up. Plaintiff similarly lacks evidence challenging Defendants' claim that they were assaulted by the protestors as they attempted to take Hoang into custody. Considering the facts and circumstances as they appeared to the Defendants, the Court cannot say that they acted unreasonably or wholly without competence when they took Hoang into custody. Given the statements of Father Dominic to Officer Hostrup, the repeated announcements to clear the parking lot, and the difficulty the officers had clearing the parking lot, the Court finds that the Defendants had probable cause to believe Hoang was trespassing. This is especially true with respect to the Garland ordinance, since Father Dominic had informed the officers that the protesters were not to be in the parking lot. Hoang's claim that he never heard the orders to move across the street is irrelevant under the Garland ordinance because, unlike § 30.05, no notice to depart is required. Hoang has failed to refute Defendants' claim of qualified immunity. No material fact issue remains regarding the false arrest claim; Defendants' Motion for Summary Judgment on this claim is GRANTED.
B. Other Federal Claims
In addition to illegal arrest, Hoang claims Defendants' used excessive force arresting him. To succeed on an excessive use of force claim, Hoang must show (1) an injury (2) which resulted directly and only from the use of force that was excessive to the need and (3) that the force used was objectively unreasonable. See Glenn, 242 F.3d at 314. Hoang complains he was handcuffed too tightly, which resulted in injury to his wrists. The Fifth Circuit has held that handcuffing too tightly, without more, does not amount to excessive force. See id. Apart from the Fifth Circuit holding, this Court notes that Hoang has presented no evidence of the last two requirements of the excessive force claim. Again, it is undisputed that the Defendants' were under assault by the protestors as they attempted to take Hoang into custody. Apart from his conclusory allegations that Hostrup and Murphy used unreasonable force, Hoang has presented this Court with no evidence to evaluate the reasonableness of the force in light of the need. Similarly, the Court lacks evidence from Hoang that the force used by Defendants' to restrain Hoang was objectively unreasonable. Plaintiff's statements of his body size in comparison to Defendants' are insufficient. Again, the Court must be mindful of the overall situation as it appeared to the Defendants. Thus, the Court finds no disputed material questions of fact exist as to the second and third elements of Hoang's excessive force claim. The Defendants are entitled to qualified immunity. Defendants' motion for summary judgment on the claim of excessive force is GRANTED.
Hoang's First Amendment, racial discrimination, illegal incarceration, and malicious prosecution claims all stem from his argument that Defendants' acted without probable cause, and thus unreasonably, when they arrested him. Plaintiff has presented no evidence apart from conclusory statements to support these claims. Upon reviewing the pleadings and the evidence, the Court finds there are no disputed questions of material fact as to elements of each of these claims. For instance, there is no evidence that the Defendants acted with malice, and the Court finds they did not. As for the First Amendment claim, trespassers do not enjoy general rights of free speech on private property used nondiscriminatorily for private purposes. See Lloyd Corp., Ltd. v. Tanner, 407 U.S. 551, 568 (1972). Additionally, the Court has held that Defendants had probable cause and acted with objective reasonableness when they arrested Hoang. Thus, they acted under authority of law. The Defendants' are entitled to assert qualified immunity. Accordingly, Defendants' motion for summary judgment on these claims is GRANTED.
IV. ANALYSIS OF TEXAS TORT CLAIMS
In addition to Hoang's federal claims, he brings claims under Texas tort law for assault, battery, false arrest, and false imprisonment. Similar to the federal claims, Defendants move for summary judgment on official immunity grounds.
The Court has found that the Defendants' had probable cause to arrest Hoang. They acted objectively reasonably and within the scope of their authority on the morning of the arrest. The Court has also found that the Defendants' acted without malice. Hostrup and Murphy are entitled to official immunity under Texas law. Accordingly, Defendants' Motion for Summary Judgment on Hoang's Texas common law tort claims is GRANTED.
V. ATTORNEYS' FEES
The Court reserved judgment on Defendants' right to attorneys' fees pursuant to 42 U.S.C. § 1988 until final judgment. See Order filed March 30, 2001. As the Court has disposed of all Plaintiff's claims, consideration of the fee issue is now appropriate. The Court finds that Plaintiff's claims were not frivolous, vexatious or otherwise without merit. See Christianberg Garment Co. v. Equal Employment Opportunity Commission, 434 U.S. 412, 419-21 (1978); Dean v. Riser, 240 F.3d 505, 508 (5th Cir. 2001). Defendants' are therefore not entitled to recover their attorneys' fees from Hoang; Defendants' claim is DISMISSED.
VI. CONCLUSION
Defendants' Objections to Plaintiff's Summary Judgment Evidence are SUSTAINED; Plaintiff's objections to Defendants' Affidavit Evidence are OVERRULED. Defendants' Motion for Summary Judgment is GRANTED as to all Hoang's federal and state causes of action. As this case has been disposed of on summary judgment grounds, the Court does not address Defendants' Motion to Dismiss for Spoilation of Evidence and it is DISMISSED as moot. Defendants' pending claim for attorneys' fees is likewise DISMISSED. Judgment will be entered accordingly.
SO ORDERED.