Opinion
Civil Action No. 3:98-CV-2301-X.
July 20, 2000.
MEMORANDUM OPINION AND ORDER
Before the Court is Defendants' Motion for Summary Judgment ("Motion"), filed on November 24, 1999. For the reasons stated below, the Court concludes that Plaintiff has failed to raise a genuine issue of material fact with respect to all of her claims except for her excessive force and assault and battery claims against Defendant Michael Magiera in his individual capacity Therefore, the Motion is GRANTED IN PART and DENIED IN PART Plaintiff's claims against Defendants City of Dallas ("the City"), Stephen B Baker, and Gene M Hale, are DISMISSED WITH PREJUDICE
I. BACKGROUND
Plaintiff brought this action pursuant to 42 U.S.C. § 1983 and Texas law alleging various federal and state law claims against Defendants for the actions of Magiera, Baker, and Hale, all officers with the Dallas Police Department ("DPD"), in arresting Plaintiff for disorderly conduct, excessive noise, public intoxication, resisting arrest, and resisting transportThe relevant facts are largely disputed. On the night of April 27, 1997, Plaintiff was attending a party at a residence on 5613 Winton Street in Dallas, Texas Hale arrived at the party at around 3:00 a.m. to investigate a complaint about loud music being played at the party. When Hale requested to speak to the owner of the residence, Plaintiff confronted Hale and told him that while she was a visitor and not the owner of the residence, she would take responsibility of any problem. See Pl.'s Decl. ¶¶ 14-15 at 3. Hale instructed Plaintiff to step out of the residence and produce identification While Plaintiff was retrieving her identification, Defendants Magiera and Baker arrived at the residence Plaintiff produced her identification as instructed, and upon review of Plaintiff's identification, Hale told Plaintiff that she was under arrest, and ordered Magiera to handcuff and escort her to his police car
While she was being escorted to the police car, several friends of Plaintiff came out of the residence and told Hale, Magiera, and Baker that they could not arrest her. Heidi Maher and Heather Christian, two of Plaintiff's friends who had come out to complain about Plaintiff's arrest, were also arrested by Hale. As Magiera escorted Plaintiff to his car, Plaintiff complained about the arrest, and stated that "my dad was going to have a `heyday' with what [the officers] were doing" Id. ¶ 31 at 3-4. Plaintiff alleges that in response to this statement, Magiera banged her against the car, pushed her into the ground, pushed his nightstick into her lower back, and applied pressure to her mandibular pressure point in order to subdue her Plaintiff alleges that Magiera put on the handcuffs so tight that Plaintiff could not feel her wrists When Plaintiff complained about the tightness of the handcuffs, Magiera loosened them On the way to Lew Sterrett Criminal Justice Center, Plaintiff somehow freed her hands from the handcuffs to fasten her blouse, which became unfastened during the struggle When Magiera noticed this, Plaintiff alleges that Magiera tightened the handcuffs even tighter than they were before she complained, aggravating her bruised wrists At Lew Sterrett, Plaintiff claims that pictures were taken of her wrists, and that she was strip-searched by members at the Dallas County Sheriff's Department Plaintiff was charged with disorderly conduct, excessive noise, public intoxication, resisting arrest, and resisting transport.
By April 4, 1998, the charges for resisting arrest and public intoxication against Plaintiff were dismissed. However, when Plaintiff went to DPD headquarters on April 13, 1998, to file a complaint about the actions of Magiera, Baker, and Hale, she was told by an unidentified officer that she could not file such a complaint because their actions occurred outside the deadline in which to file complaints.
Plaintiff then brought this action on September 29, 1998, alleging violations of' federal and state law, in her Original Complaint, Plaintiff alleges illegal arrest and detention, excessive force, unlawful search, assault and battery and official oppression, and malicious prosecution Defendants move for summary judgment on all of Plaintiff's claims.
II. ANALYSIS A. Summary Judgment Standard
FED R. Civ. P 56(c) provides that summary judgment "shall be rendered forthwith if the pleadings, depositions, answers to interrogatetories, 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 a judgment as a matter of law." See also Celotex Corp. v. Catrell, 477 U.S. 317, 322-24, 106 S.Ct. 2548, 91 L. Ed 2d 265 (1986) Once the movant has met its burden of showing that there is no genuine issue as to any material fact and that judgment as a matter of law is proper, the burden shifts to the nonmovant to establish with significant probative evidence that a genuine issue of material fact exists. See Blackwell v. Barton, 34 F.3d 298, 301 (5th Cir. 1994) The nonmovant may not rest upon the pleadings but must identify specific facts establishing that a genuine issue of material fact exists for trial. See Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir 1994). The nonmovant "must do more than simply show that there is some metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct 1348, 89 L Ed 2d 538 (1986). A dispute about a material fact is "genuine" if the evidence is such that a reasonable jury could return a verdict for the nonmoving party Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct 2505, 2510, 91 L Ed 2d 202 (1986) In making its determination, the court must draw all justifiable inferences in favor of the nonmoving party See id., Mangieri v. Clifton 29 F.3d 1012, 1015 (5th Cir 1994)
B. Grounds for Summary Judgment I Illegal Arrest and Detention Claim
With respect to Plaintiff's illegal arrest and detention claim, which alleges various constitutional violations, Defendants argue that they are entitled to summary judgment because Plaintiff has failed to allege a violation of a constitutional right and, even it' Plaintiff has alleged such a violation, they are entitled to qualified immunity.
Every person who acts under "color of law" and "subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the (Constitution and laws" shall be subject to civil liability 42 U.S.C. § 1983 In evaluating § 1983 claims against government officials, a threshold question is whether the plaintiff has alleged a constitutional violation at all. See Siegert v. Gilley, 500 U.S. 226, 232, 111 S.Ct. 1789, 1793, 114 L Ed 2d 277 (1991), Gros v. City of Grand Prairie, 209 F.3d 431, 433 (5th Cir 2000) If the plaintiff has alleged a constitutional violation, then the analysis focuses on qualified immunity if it has been affirmatively pleaded by the defendant. See Siegert, 500 U S at 231, 111 S.Ct. at 1792 Qualified immunity is an affirmative defense that shields government employees performing discretionary functions from civil liability as long as their actions could reasonably be considered as consistent with any rights they allegedly violated See Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct 2727, 2738, 73 L Ed 2d 396 (1982) Whether a defendant can successfully invoke qualified immunity requires the determination of whether the plaintiff has alleged a violation of a clearly established constitutional right at the time of the event giving rise to his claims and whether the defendant's conduct was objectively reasonable See Siegert, 500 U.S at 231-32, 111 S.Ct at 1792-93. Mangieri, 29 F.3d at 1016 Determining what is objectively reasonable focuses on whether a reasonable officer could have believed his action to be lawful in light of established law and information that he possessed at the time of the event.
See id.
In this case, Defendants are entitled to summary judgment on Plaintiff's illegal arrest claim because she has failed to allege a constitutional violation Plaintiff's constitutional rights were not violated when she was arrested because Defendants had probable cause to arrest Plaintiff A claim of illegal, unlawful, or false arrest is properly based under the Fourth Amendment, which requires warrantless arrests to be based upon probable cause See Blackwell, 34 F.3d at 302 "Probable cause exists when the facts and circumstances within the knowledge of the arresting officer are sufficient to cause a person of reasonable caution to believe that an offense has been or is being committed" United States v. Garner, 945 F. Supp. 990, 997 (N D Tex 1996), aff'd, 136 F.3d 138 (5th Cir. 1998) (table); Blackwell, 34 F.3d at 302 Also, in Texas a peace officer can arrest an individual without a warrant if the officer has probable cause to believe that an offense has occurred or if the officer witnesses a violation of the law See Harper v. Harris County, 21 F.3d 597, 601 (5th Cir. 1994); see also TEX CRIM P CODE ANN § 213(b)(4) (West 1997) ("[A peace officer] shall arrest offenders without warrant in every case where he is authorized by law").
Under this standard, it is clear that the others had probable cause to arrest Plaintiff for disorderly conduct, and Plaintiff has no basis for alleging an illegal or unlawful arrest claim Under Texas law, a person commits disorderly conduct if intentionally or knowingly "makes unreasonable noise in a public place, or in or near a private residence" TEX PENAL CODE § 42 01(a)(5) (West 1994). It is undisputed that Hale went to the residence in response to a complaint about loud noise from the residence, and that when Hale arrived he heard loud music coming from the residence It is also undisputed that when Hale approached the residence and requested to speak with the owner, Plaintiff confronted Hale and informed him that she would take responsibility for any problem Thus, Plaintiff cannot raise a genuine issue of material fact relating to the legality of her arrest because Defendants had probable cause for arresting Plaintiff for disorderly conduct
Plaintiff's response to Defendants' Motion on this ground is without any merit In her brief opposing the Motion, Plaintiff initially argues that there was no probable cause to arrest Plaintiff for disorderly conduct. See Pl.'s Br. in Opp'n to Def's Mot for Summ Jgmt at 10 [hereinafter Pl.'s B.R. 3. Plaintiff then cites a portion of Texas Penal Code § 42 01(a) as follows
a person commits a disorderly conduct offense if he intentionally or knowingly
(1) uses abusive, indecent, profane, or vulgar language in a public place, and the language by its very utterance tends to incite an immediate breach of the peace,
(5) makes unreasonable noise in a public place
Pl.'s Br. at 10. Under this law, Plaintiff argues that there was no probable cause to arrest Plaintiff for disorderly conduct because Defendants do not claim that any language attributed to Plaintiff tended to incite an immediate breach of the peace, as proscribed by § 42 01(a)(1). Plaintiff also argues that the party was not a "public place," and thus probable cause did not exist to arrest Plaintiff under § 42.01(a)(5)
These arguments are without any merit First, Plaintiff improperly cites § 42 01(a)(5) by neglecting to include a clause that is critical to this case Section 4201(a)(5), as properly cited, reads as follows:
[a person commits a disorderly conduct offense it he intentionally or knowingly]
(5) makes unreasonable noise in a public place other than a sport shooting range, as defined by Section 250001, Local Government Code, or in or near a private residence that he has no right to occupy.
TEX. PENAL. CODE § 42 01(a)(5) (emphasis added) Plaintiff's omission of the critical phrase "or in or near a private residence that he has no right to occupy" is convenient but disingenuous When the facts are considered in light of § 42 01(a)(5), properly defined, Plaintiff cannot state a claim under § 1983 for illegal arrest and detention because it is undisputed that the party was making clearly audible noise near a private residence that Plaintiff had no right to occupy. Second, Plaintiff acknowledges that she represented to Hale that she would be responsible for any problems caused by the party. Plaintiff admits that while she was not the owner of the house, she asked Hale what the problem was and "said something to the effect that she would try to take care of it" Pl's Br. at 3 [hereinafter Pl.'s Br]; Pl.'s Decl at 2 This admission, in light of Hale's affidavit, which states that Plaintiff informed him that she was in charge of the residence and hosting the party, see Def's App. .at 2, supports the conclusion that Defendants had probable cause to arrest Plaintiff for disorderly conduct, and that Plaintiff cannot allege a claim for illegal arrest and detention under § 1983. Cf Mangieri, 29 F.3d at 1017
Alternatively, even if Plaintiff's illegal arrest and detention claim had any merit, Defendants are entitled to qualified immunity Assuming that Plaintiff was arrested in violation of a clearly established right, Defendants' actions were objectively reasonable because they had probable cause to arrest her for disorderly conduct It is undisputed that the party was generating noise that prompted neighbors to complain to the police Plaintiff has also admitted that she told Hale that she would "try to take care of" any problem In light of these facts, it was objectively reasonable for Defendants to arrest Plaintiff for disorderly conduct See id., Pfannstiel v. City of Marion, 918 F.2d 1178, 1183-84 (5th Cir 1990)
Plaintiff's futile arguments to create an issue of fact by focusing on other crimes with which she was charged cannot withstand summary judgment Plaintiff argues in her response that Defendants' Motion should be denied because the officers lacked probable cause to arrest and charge her with public intoxication and resisting arrest, which charges were later dismissed However, this argument is irrelevant because, as noted above, there was probable cause to arrest Plaintiff for disorderly conduct The existence of probable cause for arresting Plaintiff for disorderly conduct affords the officers qualified immunity even it' there was no probable cause to arrest her for public intoxication and resisting arrest, as those offenses are related to the offense of disorderly conduct in this action. Cf. Vance v. Nummery, 137 F.3d 270, 273 (5th Cir 1998) (discussing the "related offense" doctrine in which a police officer can assert qualified immunity for an unconstitutional warrantless arrest by claiming that he could have made the arrest for a related, but uncharged, offense for which he had probable cause) Even if the officers erroneously concluded that they had probable cause to arrest for public intoxication and resisting arrest charges, they are entitled to qualified immunity because their actions were objectively reasonable See Mangieri, 29 F.3d at 1017. Moreover, the fact that the charges against Plaintiff were eventually dismissed does not render the arrest on such charges illegal or unlawful See Person v. Ray, 386 U.S. 547, 555, 87 S.Ct. 1213, 1218, 18 L.Ed.2d 288 (1967) ("[A] peace officer who arrests someone with probable cause is not liable for false arrest simply because the innocence of the suspect is later proved ") Ultimately, Plaintift's argument fails to defeat Defendants' defense of qualified immunity
2 Excessive Force Claim
Defendants seek summary judgment on Plaintiff's second cause of action, which alleges excessive force in violation of the Fourth and Fourteenth Amendments While Defendants concede that Magiera used force to restrain Plaintiff, they argue that the officers are entitled to qualified immunity because the force used by Magiera was reasonably necessary to restrain and arrest Plaintiff and to defend against Plaintiff's unlawful resistance Defendants also argue that Plaintiff fails to state a claim against Hale and Baker because they did hot use any force against Plaintiff Defendants finally contend that the City is entitled to summary judgment because there is no policy or custom pursuant to which the officers allegedly deprived Plaintiff of a constitutional right
To state a claim for imposition of excessive force under the Fourth Amendment, "[a plaintiff is] required to show that he (l) suffered some injury which (2) resulted from force that was clearly excessive to the need for force, and (3) the excessiveness of which was objectively unreasonable." Heitschmidt v. City of Houston, 161 F. 3 834, 839 (5th Cir 1998) Although the injury need not be significant, the plaintiff must have suffered at least some form of injury See Williams v. Bramer, 180 F.3d 699, 703 (5th Cir), reh'g denied 86 F.3d 633 (5th Cir 1999) Plaintiff has offered sufficient evidence of injury by showing that she suffered several bruises as a result of Magiera's use of force See Pl's Br. Ex. 2, 3
Because the record is insufficient as to why Plaintiff suffered her injuries, there is a genuine issue of material fact that precludes summary judgment only for Defendant Magiera on this claim. The only evidence before the Court are affidavits from Plaintiff and her friends at the party, and the officers' affidavits. Plaintiff claims that she was thrown against the squad car, thrown on the ground, pressed in the back with a nightstick, and subjected to a mandibular pressure point restraint for no reason because she was cooperating with the Defendants and not resisting arrest See Pl's Decl. ¶¶ 32-44 at 3-5. Defendants argue that, contrary to Plaintiff's claims, force was used to restrain Plaintiff because Plaintiff refused to comply with Defendants' commands and resisted arrest See Def's App. .at 6-7, 11-12. Because the record presented by the parties is insufficient to conclude whether or not force used by Magiera was clearly excessive to the need and/or objectively unreasonable, Defendants' Motion is denied only for Magiera in his individual capacity
However, Defendants Hale, Baker, and the City are entitled to summary judgment on this claim. Plaintiff's claim does not allege that Hale and Baker used any force against her With respect to Plaintiff's claim against the City, she asserts that
[b]y having a practice and policy that allegations of police misconduct will not be accepted unless presented within a certain time period, the City of Dallas tacitly encourages officers to engage in improper conduct including excessive force because said arrests and detentions serve to delay, conceal and thwart any claims of excessive force.
Compl. at 11. This allegation is based on the fact that while Plaintiff was arrested on April 27, 1997, when she went to DPD headquarters to tile a complaint about the officers' actions on April 13, 1998, she was allegedly told by an unspecified DPD officer that she would not be allowed to file a complaint because too much time had elapsed since her arrest This claim cannot withstand summary judgment for the City because, on its face, it fails to state a claim upon which relief can be granted Because a municipality cannot be held liable on the basis of liability of its employees, see Monell v. Department of Social Servs., 436 U S, 658, 691, 98 S.Ct 2018 2036 56 L Ed 2d 611 (1978), Plaintiff must allege and offer evidence that would allow a reasonable jury to find that her injury resulted from the exercise of the City's official policy See id. at 694, 98 S.Ct. at 2037-38. An "official policy" is
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 constrictive knowledge of such custom must be attributable to the governing body of' the municipality or to an official to whom that body had delegated policymaking authority Actions of officers or employees ota municipality do not render the municipality liable under § 1983 unless they execute official policy as above definedWebster v. City of Houston, 735 F.2d 838, 841 (5th Cir. 1984) (en banc) Moreover,
[t]he plaintiff must also demonstrate that, through its deliberate conduct, the municipality was the `moving force' behind the injury alleged That is, a plaintiff must show that the municipal action was taken with the requisite degree of culpability and must demonstrate a direct causal link between the municipal action and the deprivation of federal rightsBoard of Commissioners of Bryan County v. Brown, 520 U.S. 397, 404, 117 S.Ct 1382, 1388, 137 L.Ed.2d 626 (1997)
Assuming that a deadline for tiling complaints against officers is a City "policy" under Walker, Plaintiff has failed to allege how such policy served to delay, conceal, and thwart any claim of excessive force brought by either herself or other individuals To accept Plaintiff's claim would lead to the troublesome situation of rendering virtually every innocuous municipal "policy" as the moving force behind a constitutional violation See Oklahoma City v. Tuttle, 471 U.S. 808, 823-24, 105 S Ct. 2427, 2436-37, 85 L Ed 2d 791 (1985) ("[I]f one retreats far enough from a constitutional violation some municipal `policy' can be identified behind almost any such harm inflicted by a municipal official.") (plurality opinion) Furthermore, even if the policy resulted in the "tacit encouragement" of the use of excessive force on Plaintiff, a single incident normally does not prove the existence of a policy or custom See id. Finally, in light of the fact that Plaintiff sought to file a complaint on April 13, 1998, nearly one year after her arrest, Plaintiff's allegation is too speculative and conclusory. Cf. Mossey v. City of Galveston, 94 F. Supp.2d 793, 799 (S D. Tex. 2000) ("Plaintiff's arguments remain unsubstantiated and do not give rise to an inference that the Galveston Police Department had long carried out some type of clandestine operation that permitted police officers to knowingly violate the civil rights of criminal suspects") Thus, Defendants Hale, Baker, and the City are entitled to summary judgment on Plaintiff's excessive force claim
3 Unlawful Search
Defendants argue that they are entitled to summary judgment on Plaintiff's third claim, which alleges that Defendants performed an unlawlul search in violation of the Fourth and Fourteenth Amendments Specifically, Defendants argue that Plaintiff failed to plead or establish a single fact or allegation that any of the Defendants ever searched her Defendants argue that Plaintiff merely alleges that certain members of the Dallas County Sheriffs Department, and not Defendants, strip-searched her
Defendants are also entitled to summary judgment on this claim Plaintiff's Complaint and declaration state that she was "strip searched by members of the Dallas County Sheriffs Department, who told [her] to lift up her breasts for examination" Pl's Orig Compl ¶ 44 at 7; Pl's Decl ¶ 49 at 5. While a strip search under certain circumstances may be unreasonable, see Stewart v. Lubbock County, 767 F.3d 153, 156 (5th Cir 1985), cert. denied, 475 U.S. 1066 (1986); Holton v. Mohon, 684 F. Supp. 1407, 1414 (N.D.Tex. 1987), Plaintiff has not alleged that any Defendant strip searched her or presented any facts suggesting that such search was unreasonable. Thus, Defendants are entitled to summary judgment on this cause of action.
4 Assault, Battery, and Official Oppression
Defendants seek summary judgment on Plaintiff's claim for assault, battery, and official oppression. Plaintiff alleges that the officers committed assault, battery, and official oppression in violation of clearly established rights Plaintiff adds that the City pursued policies, practices, and customs that resulted in the officers' assault, battery, and official oppression Plaintiff protests that such policies, practices, and customs include the ratification of improper conduct despite knowledge of its illegality, a police code of silence whereby the use of excessive force is condoned, the failure to take department-wide corrective measures upon notice of problems, a policy of not investigating claims of police misconduct, the failure to properly train and discipline its officers, a policy of deliberate indifference to her constitutional rights, and the failure to take action in previous actions of a similar kind.
Defendants Hale, Baker, and the City are entitled to summary judgment on this cause of action. Under the Texas Tort Claims Act ("TTCA"), TEX CIV. PRAC. REM. CODE §§ 101 001-101.109 (West 1997), municipalities enjoy sovereign immunity from civil liability for claims "arising out of assault, battery, false imprisonment, or any other intentional tort" TEX CIV PRAC REM CODE § 101.057 Because civil actions against municipal employees acting in their official capacity is essentially an action against the municipality, this immunity is extended to such employees See Morris v. Copeland, 944 S.W.2d 696, 698 (Tex App-Corpus Christi 1997, no writ) Furthermore, "[g]overnment employees are entitled to official immunity from suit arising from the performance of their (l) discretionary duties in (2) good faith as long as they are (3) acting within the scope of their authority." City of Lancaster v. Chambers, 883 S.W.2d 650, 653 (Tex 1994)
Under this authority, the City is entitled to summary judgment on Plaintiff's assault and battery claims because of sovereign immunity under the TTCA Plaintiff's assault and battery claims against Hale, Magiera, and Baker in their official capacity fail for the same reason. In addition, summary judgment is proper for Plaintiff's assault and battery claims against Hale and Baker in their individual capacity because of official immunity as they performed discretionary duties in good faith while acting within their scope of authority See Chambers, 883 S.W.2d at 656 (adopting a test for official immunity similar to the test for qualified immunity) Moreover, Hale and Baker did not use any force upon Plaintiff However, because summary judgment is denied for Plaintiff's excessive force claim against Magiera, summary judgment is also improper for Plaintiff's assault and battery claim against Magiera in his individual capacity Finally, Plaintiff's official oppression claim fails against all Defendants because it is a criminal offense and not a cause of action that Plaintiff can allege against Defendants. See TEX PENAL CODE § 3903 (West 1994)
5 Malicious Prosecution
Defendants seek summary judgment on Plaintiff's final claim of malicious prosecution, which alleges that Defendants prosecuted her with malice, on the same ground as for Plaintiff's assault, battery, and official oppression claim As discussed above, the City and the officers in their official capacity, are entitled to summary judgment under the TTCA Also, all the officers in their individual capacity are entitled to summary judgment because of official immunity because they had probable cause to arrest her for disorderly conduct See Chambers, 883 S W.2d at 656 To the extent that Plaintiff's malicious prosecution claim is based on federal law, summary judgment is proper because Plaintiff has failed to properly allege the elements of such claim and because Defendants acted with probable cause See Sanders v. English, 950 F.2d 1152, 1163 (5th Cir 1992) (quoting Hand v. Gary, 838 F.2d 1420, 1424 (5th Cir 1988)). Kerr v. Lyford, 171 F.3d 330, 340 (5th Cir. 1999)
III. CONCLUSION
For the reasons stated above, Defendants' Motion for Summary Judgment is GRANTED IN PART and DENIED IN PART Plaintiff's claims, except for her excessive force and assault and battery claims against Defendant Michael Magiera in his individual capacity, are DISMISSED WITH PREJUDICE.
It is so ORDERED