Opinion
CIVIL ACTION NO. 3:00-CV-1965-G.
September 26, 2001.
MEMORANDUM ORDER
Before the court is the defendant's motion for summary judgment. For the reasons stated below, the motion is granted.
I. BACKGROUND
This is a civil rights case. The plaintiff Billy Jackson ("Jackson") sues Ray Stewart, in his official capacity as the sheriff of Ellis County, Texas, for injuries sustained on September 9, 1998 when Jackson was found in contempt of court for failure to pay child support and taken into custody by sheriff's deputies. Plaintiff's Original Complaint ("Complaint") at 2. While he was being conducted out of the courthouse by sheriff's deputies, Jackson — who had undergone a lumbar fusion on May 21, 1998 — fell on the courthouse steps and fractured the fusion in his back. Id. at 2-3. He was then placed in the Ellis County Jail for 36 days, where he sometimes failed to receive pain and other medications. Id. at 3.
II. ANALYSIS A. Evidentiary Burdens on Motion for Summary Judgment
Summary judgment is proper when the pleadings and evidence on file 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). "[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 movant makes such a showing by informing the court of the basis of his 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). 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 movant makes this showing, the nonmovant 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 nonmovant must show that the evidence is sufficient to support a resolution of the factual issue in his favor. Anderson, 477 U.S. at 249.
While all of the evidence must be viewed in a light most favorable to the motion's opponent, Anderson, 477 U.S. 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 non-movant's summary judgment burden. Little v. Liquid Air Corporation, 37 F.3d 1069, 1075 (5th Cir. 1994) (en banc); Topalian v. Ehrman, 954 F.2d 1125, 1131 (5th Cir.), cert. denied, 506 U.S. 825 (1992). Summary judgment in favor of the movant is proper if, after adequate time for discovery, the motion's opponent fails to establish the existence of an element essential to his case and as to which he will bear the burden of proof at trial. Celotex, 477 U.S. at 322-23.
B. Grounds for Liability of Ellis County 1. Section 1983
As Jackson acknowledges in his complaint, Complaint at 1, this suit against the sheriff solely in his official capacity is, in effect, a suit against Ellis County. See Kentucky v. Graham, 473 U.S. 159, 166 (1985); Lampkin v. City of Nacogdoches, 7 F.3d 430, 430 n. 2 (5th Cir. 1993), cert. denied, 511 U.S. 1019 (1994); Swann v. City of Dallas, 922 F. Supp. 1184, 1192 (N.D. Tex. 1996), aff'd, 131 F.3d 140 (5th Cir. 1997) (table).
A local government entity such as Ellis County cannot be held liable under Section 1983 on a theory of respondeat superior liability. See Monell v. Department of Social Services of City of New York, 436 U.S. 658, 691 (1978). Rather, to prevail on his claims against the sheriff in his official capacity, Jackson must prove (1) that he suffered a deprivation of a federally protected right and (2) that the deprivation resulted from an official policy, custom, or practice of Ellis County. See id. at 691-94. Unless he can show an unconstitutional policy or custom, Jackson has no grounds for recovery under § 1983 against Ellis County or the sheriff in his official capacity.
"An official policy, for purposes of § 1983 liability, is `[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.'" Brown v. Bryan County, Oklahoma, 219 F.3d 450, 457 (5th Cir. 2000) (quoting Bennett v. City of Slidell, 735 F.2d 861, 862 (5th Cir. 1984) (en banc)), cert. denied, ___ U.S. ___, 121 S.Ct. 1734 (2001). "Alternatively, official policy is `[a] persistent, widespread practice of [county] 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.'" Id.
The summary judgment evidence fails to establish that the sheriff of Ellis County has any unconstitutional policies or customs. While Jackson has alleged that the deputy sheriffs who dealt with him "were acting in their official capacities as Texas Peace Officers pursuant to the customs, practices, and written policies of the Sheriff of Ellis County," Complaint at 1, he has not identified what those policies were. This is a critical defect, since "[u]nder 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. 2001), pet. for cert. filed, 69 U.S.L.W. 3780 (June 5, 2001) (No. 00-1811); 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). A plaintiff seeking to impose liability on a local unit of government must establish each of these three elements, but Jackson has offered no evidence identifying the official policy of which he complains.
2. State Law Claims
On Jackson's claims under Texas law, the state and its subdivisions are immune from common law tort liability unless an exception is created in the Texas Tort Claims Act. Diaz v. Central Plains Regional Hospital, 802 F.2d 141, 142-43 (5th Cir. 1986). This is true even though there is no dispute regarding the governmental entity's liability. Couch v. Ector County, 860 S.W.2d 659, 661 (Tex.App.-El Paso 1993, no writ), overruled on other grounds by Federal Sign v. Texas Southern University, 951 S.W.2d 401 (Tex. 1997). "Counties perform only governmental functions and are immune from tort suits unless their immunity has been waived by statute." Garcia v. Maverick County, 850 S.W.2d 626, 628 (Tex.App.-San Antonio 1993, writ denied). Governmental immunity has not been waived for torts such as those Jackson has asserted. Under the Texas Tort Claims Act, TEX. CIV. PRAC. REM. CODE ANN. § 101.001 et seq. (Vernon 1986), local government entities such as Ellis County can be liable only for (1) property damage, personal injury, and death arising from the operation or use of a motor-driven vehicle or equipment and (2) personal injury and death caused by a condition or use of tangible personal or real property. See Martinez v. Hardy, 864 S.W.2d 767, 772 (Tex.App.-Houston [14th Dist.] 1993, no writ) (citing TEX. CIV. PRAC. REM. CODE ANN. § 101.021). Neither of these exceptions to sovereign immunity applies in this case. See City of Hempstead v. Kmiec, 902 S.W.2d 118, 122 (Tex.App.-Houston [1st Dist.] 1995, no writ).
Jackson has alleged that "the Deputy Sheriff's use of handcuffs was a use of tangible personal property within the meaning of Section 101.021 of the Texas Civil Practice and Remedies Code." Complaint at 3. To decide whether the state of Texas has waived its sovereign immunity so as to give this court jurisdiction over this claim, the court must examine Jackson's pleadings and any evidence submitted by the parties on the issue. Texas Department of Criminal Justice v. Miller, 51 S.W.3d 583, 587 (Tex. 2001). These documents reflect that Jackson tripped and fell while his hands were handcuffed in front of him. This is not sufficient to show a waiver of Ellis County's immunity. For governmental immunity to be waived, the "personal injury . . . must be proximately caused by the . . . use of tangible property." Dallas County Mental Health and Mental Retardation v. Bossley, 968 S.W.2d 339, 343 (Tex.), cert. denied, 525 U.S. 1017 (1998). "Property does not cause injury if it does no more than furnish the condition that makes the injury possible." Id. (citing Union Pump Co. v. Allbritton, 898 S.W.2d 773, 776 (Tex. 1995)).
C. Absence of Response to Motion for Summary Judgment
In response to the motion for summary judgment, Jackson has requested a continuance, pursuant to F.R.Civ.P. 56(f), on the ground that he needs the deposition of deputy sheriff Tate in order to oppose the motion for summary judgment. See Plaintiff's Unopposed Motion to Enlarge Time to Respond to Defendant's Motion for Summary Judgment at 1-2. Rule 56(f) permits the court to grant a continuance when "it appear[s] from the affidavits of [the] party opposing the [summary judgment] motion that the party cannot for reasons stated present by affidavit facts essential to justify the party's opposition." A party seeking a Rule 56(f) continuance "must show how the additional discovery will defeat the summary judgment motion, that is, will create a genuine dispute as to a material fact, and `may not simply rely on vague assertions that additional discovery will produce needed, but unspecified facts.'" International Shortstop, Inc. v. Rally's, Inc., 939 F.2d 1257, 1267 (5th Cir. 1991) (quoting Securities and Exchange Commission v. Spence Green Chemical Co., 612 F.2d 896, 901 (5th Cir. 1980), cert. denied, 449 U.S. 1082 (1981)), cert. denied, 502 U.S. 1059 (1992). Jackson does not state with any specificity how the additional discovery he seeks would create a genuine dispute as to a material fact. Accordingly, his request for a continuance pursuant to Rule 56(f) is denied.
Thus, as matters stand, the motion for summary judgment is unopposed. Ellis County is not automatically entitled to summary judgment as a result of Jackson's failure to respond. John v. State of Louisiana (Board of Trustees for State Colleges Universities), 757 F.2d 698, 707-08 (5th Cir. 1985). If Ellis County fails to discharge its initial burden, Jackson has no obligation to respond at all. Id. at 708. However, if Ellis County meets its burden under Rule 56, Jackson cannot survive the motion by resting on the mere allegations of his pleadings. Isquith for and on Behalf of Isquith v. Middle South Utilities, Inc., 847 F.2d 186, 199 (5th Cir.), cert. denied, 488 U.S. 926 (1988). Although the court is not permitted to enter a default summary judgment by virtue of Jackson's failure to respond, it may accept as undisputed the facts so described in support of Ellis County's motion. Eversley v. MBank Dallas, 843 F.2d 172, 174 (5th Cir. 1988). Summary judgment is appropriate if Jackson (as the nonmovant) fails to set forth specific facts, by affidavits or otherwise, showing that there is a genuine issue for trial. Topalian, 954 F.2d at 1132; see also Little, 37 F.3d at 1075 (once movant for summary judgment meets burden imposed by Rule 56, nonmovant must go beyond pleadings and designate specific facts showing that there is a genuine issue for trial).
III. CONCLUSION
For the reasons stated, the defendant's motion for summary judgment is GRANTED. Judgment will be entered that Jackson take nothing on his claims in this case.
Jackson has also named as defendants certain "unknown deputy sheriff's" (sic). As to these defendants, he avers that "[t]he individual Deputies who's [sic] identities are not yet known but will be determined through discovery, were employees of the Sheriff of Ellis County were [sic] acting in their official capacities as Texas Peace Officers pursuant to the customs, practices and written policies of the Sheriff of Ellis County." Complaint at 1. The claims against these defendants are dismissed for several reasons. First, if they are sued in their official capacity only, their presence in the case is unnecessary to the liability of Ellis County. See the discussion at 3-7, above. On the other hand, if they are sued in their personal capacities, amendment of the complaint would be required. Such an amendment would be futile, however, as the Texas two-year limitations statute, TEX. CIV. PRAC. REM. CODE § 16.003(a) (Vernon 1986), would bar claims arising from this 1998 incident. See Wilson v. Garcia, 471 U.S. 261, 280 (1985) (in civil rights action under 42 U.S.C. § 1983, state statute of limitations for personal injury claims should be applied). Moreover, no facts have been alleged to satisfy the heightened pleading standard required in this circuit to overcome qualified immunity. See Schultea v. Wood, 47 F.3d 1427, 1430-33 (5th Cir. 1995) (en banc). Finally, this court need not allow any such amendment after a motion for summary judgment has been filed. Little v. Liquid Air Corporation, 952 F.2d 841, 846 n. 2 (5th Cir. 1992) (panel opinion), reaffirmed on this point in the en banc opinion, 37 F.3d 1069, 1073 n. 8 (1994). Thus, Jackson's claims against the unknown deputy sheriffs are DISMISSED. See Rule 4(m), F.R. CIV. P.
SO ORDERED.