Opinion
3:01-CV-1621-M
July 23, 2002
REPORT AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE
Pursuant to the District Court's Standing Order of Reference filed on October 12, 2001, and the provisions of 28 U.S.C. § 636(b)(1)(B) and (C) came onto be considered Defendants Kaufman County, Texas, Robed Harris, and Loe L. Maddox's Motion for Summary Judgment filed on March 28, 2002; Defendants Timothy Maloney and Kevin Pederson's Motion for Summary Judgment Asserting Qualified Immunity filed on March 28, 2002; Defendant C. Lee's Motion for Summary Judgment filed on March 29, 2002; Plaintiff Michael Leotis Johnson's brief in opposition filed on April 26, 2002; and Defendants' respective replies thereto filed on May 20, 2002. The findings, conclusions, and recommendations of the magistrate judge, as evidenced by his signature thereto, are as follows;
Although identified in Plaintiff's First Amended Complaint as T. Malone, his correct full name is Timothy Maloney. See Defs. Maloney and Pederson's Br. at 1, n. 2.
FINDINGS AND CONCLUSIONS:
I. Factual and Procedural Background
Plaintiff's complaint is based upon an incident which occurred at his residence in the early morning hours of August 29, 1999. Law enforcement officers — including those whose motions for summary judgment are before the court, except for Sheriff Harris — went to Johnson's residence in response to a child custody dispute based on information that Plaintiff's son had taken custody of Plaintiff's grandson in violation of the terms of a child custody decree.
In the course of the interactions between Plaintiff and the law enforcement officers, force was used to subdue and handcuff Plaintiff which resulted in physical injury to Plaintiff and to one of the officers. Thereafter, Johnson was arrested for the offense of public intoxication and booked into the Kaufman County Jail for the offense of aggravated assault with a deadly weapon on a police officer. On June 15, 2000, Johnson was "no-billed" by a state grand jury.
In his First Amended Complaint, Plaintiff asserts that his rights under the Fourth and Fourteenth Amendments to the United States Constitution, actionable under 42 U.S.C. § 1983, were infringed during the course of an unlawful arrest (i.e., without probable cause) during which officers of the Kaufman County Sheriff's Department, the City of Terrell Police Department, the Texas Department of Public Safety, and the Texas Alcoholic Beverage Commission used excessive, unreasonable force. Plaintiff also alleges that the officers' conduct constituted both an assault and the intentional infliction of emotional distress under Texas state law.
Plaintiff named Kaufman County, Texas ("Kaufman County"); Robert Harris ("Harris"), the Kaufman County Sheriff at the time the instant action arose; Kaufman County Sheriffs ("KCS") Deputy Joe L. Maddox ("Maddox"); KCS' Deputies John Doe #1 and #2; Texas Department of Public Safety ("D.P.S.") Trooper Stansberry; D.P.S. Trooper Kevin Pederson ("Pederson"); City of Terrell Police ("TP") Officer C. Lee; TP Officers John Doe #1 and #2; and Texas Alcoholic Beverage Commission Agent Timothy Maloney ("Maloney") as Defendants in the instant matter.
As of this date, Plaintiff has yet to identify these Officers.
By an order dated January 29, 2002, the District court, on the report and recommendation of the undersigned magistrate judge, dismissed without prejudice all claims against Officer Stansberry.
See note 2, supra.
Defendant Kaufman County moves for summary judgment on the basis that no county policy can be connected to the incidents which occurred on August 29, 1999. Defendant Robert Harris seeks summary judgment on the basis that he was not personally involved in the incidents which gave rise to Plaintiff's complaint and that he cannot be held liable under a theory of respondeat superior. Defendant Joe L. Maddox contends that Plaintiff's § 1983 claims against him are barred by the defense qualified immunity, while Plaintiff's state law claims against him are barred by the defense of official immunity.
Defendant Maloney seeks summary judgment on each of Johnson's claims on the grounds that he only provided incidental assistance to Deputy Maddox in the arrest and, as such, did not violate Johnson's rights, and in the alternative, that he is entitled to the defenses of qualified and official immunity. Defendant Pederson moves for summary judgment based on the fact that he neither physically present nor participated in any way in Johnson's arrest.
Defendant Lee also moved the District Court for summary judgment on that ground that he, like Officer Maloney, only provided tangential assistance to Deputy Maddox and, alternatively, that he is also entitled to the defenses of qualified and official immunity.
II. Standard of Review
To prevail on a motion for summary judgment, the moving party has the initial burden of showing that there is no genuine issue of any material fact and that judgment should be entered as a matter of law. FED. R. CIV. P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 2552 (1986); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48, 106 S.Ct. 2505, 2509-10 (1986). The materiality of facts is determined by substantive law. Anderson, 477 U.S. at 248, 106 S.Ct. at 2510. Once the moving party has made an initial showing, the party opposing the motion for summary judgment must come forward with competent evidentiary materials to establish genuine issues of fact. Id at 256-257, 106 S.Ct. at 2514; see Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 585-87, 106 S.Ct. 1348, 1355-56 (1986). The court must resolve any factual controversies in favor of the non-moving party. Richter v. Merchants Fast Motor Lines, Inc., 83 F.3d 96, 98 (5th Cir. 1996). Thus, in reviewing all of the evidence, the court must consider it in a light most favorable to Johnson, drawing all factual inferences therefrom and making all credibility determinations related therefrom in its favor.
III. Applicable Law
Section 1983 provides that, "[e]very person who, under color of any statute, ordinance, regulation, custom, or usage, of any State . . . subjects or causes to be subjected, any . . . person within the jurisdiction [of the United States] to the deprivation of any rights . . . secured by the Constitution and laws, shall be liable to the party injured." 42 U.S.C. § 1983. Therefore, an actionable § 1983 claim must allege a deprivation of rights secured by the Constitution by a person acting under color of state law. Daniels v. Williams, 474 U.S. 327, 329-31, 106 S.Ct. 662, 664-65, 88 L.Ed.2d 662 (1986).
A. Defense of Qualified Immunity
Qualified immunity shields government officials performing discretionary functions "from civil damages liability as long as their actions could reasonably have been thought consistent with the rights they are alleged to have violated." Anderson v. Creighton, 483 U.S. 635, 639, 107 S.Ct. 3034, 3038, 97 L.Ed.2d 523 (1987). When sued in his individual capacity, a governmental employee is entitled to a presumption of qualified immunity from suit. See Pfannstiel v. City of Marion, 918 F.2d 1178, 1183 (5th Cir. 1990), abrogated on other grounds by, Martin v. Thomas, 973 F.2d 449 (5th Cir. 1992). To overcome this presumption, the plaintiff has the burden to prove that no reasonable, similarly situated officer could have considered the conduct of the official to be lawful, under the circumstances known to him at the time. See Anderson, 483 U.S. at 640-41, 107 S.Ct. at 3039-40. The objective reasonableness of an official's conduct is measured with reference to the law as it existed at the time of the conduct in question. King v. Chide, 974 F.2d 653, 657 (5th Cir. 1992). Therefore, the right which the official is alleged to have violated must have been clearly established at the time of the occurrence. Anderson, 483 U.S. at 640, 107 S.Ct. at 3039.
The examination of a claim of qualified immunity is a two-step process. Preliminarily, a court must determine whether the plaintiff has alleged the violation of a constitutional right. Siegert v. Gilley, 500 U.S. 226, 231-33, 111 S.Ct. 1789, 1793, 114 L.Ed.2d 277 (1991); Brewer v. Wilkinson, 3 F.3d 816, 820 (5th Cir. 1993). If the plaintiff has asserted the violation of a constitutional right, the court must then determine whether that right was so clearly established that a reasonable official in the defendant's situation would have understood that his conduct violated that right. See Anderson, 483 U.S. at 640, 107 S.Ct. at 3039 (qualified immunity turns on the "objective legal reasonableness" of the action assessed in light of rules that were "clearly established" at the time of the action); Brewer, 3 F.3d at 820. See also Lampkin v. City of Nacogdoches, 7 F.3d 430, 435 (5th Cir. 1993) (when the court has a clear picture of what occurred during an incident giving rise to a qualified immunity defense, the "reasonableness" question becomes one of law). The Fifth Circuit has recognized that "the qualified immunity standard `gives ample room for mistaken judgments' by protecting `all but the plainly incompetent or those who knowingly violate the law.'" Mangieri v. Clifton, 29 F.3d 1012, 1017 (5th Cir. 1994) (quoting Hunter v. Bryant, 502 U.S. 224, 229, 112 S.Ct. 534, 536, 116 L.Ed.2d 589 (1991)).
B. Unlawful Arrest
An individual has a clearly established right to be free from unlawful arrest. See Duckett v. City of Cedar Park, 950 F.2d 272, 278 (5th Cir. 1992). An arrest or detention may be unlawful if it is accomplished without due process of law as required by the United States Constitution. See Baker v. McCollan, 443 U.S. 137, 144-45, 99 S.Ct. 2689, 2694-95, 61 L.Ed.2d 433 (1979).
A law enforcement officer has probable cause to arrest if, at the time of the arrest, he had knowledge that would warrant a prudent person's belief that the person arrested had already committed or was committing a crime. See e.g., United States v. Watson, 423 U.S. 411, 96 S.Ct. 820, 46 L.Ed.2d 598 (1976) (a police officer may arrest a person if he has probable cause to believe that person committed a crime); see also Gladden v. Roach, 864 F.2d 1196, 1199 (5th Cir. 1989). Thus, an essential predicate to any § 1983 claim for unlawful arrest is the absence of probable cause. Kelley v. Myler, 149 F.3d 641, 646 (7th Cir. 1998) (citation omitted)
C. Excessive Force
Established law clearly provides that plaintiff has a Fourteenth Amendment right to be free from the use of excessive force by police. "Claims that law enforcement officials have used excessive force in the course of an arrest, investigatory stop, or other `seizure' of a free citizen . . . must be judged by reference to the Fourth Amendment's `reasonableness' standard." Graham v. Connor, 490 U.S. 386, 395, 109 S.Ct. 1865, 1871, 104 L.Ed.2d 443 (1989). The Court, however, must take care not to substitute its judgment for that of the reasonable officer on the scene. See id. at 396, 109 S.Ct. at 1872. In considering "reasonableness," the court must include allowances for the fact that police officers are often forced to make split-second judgments — in circumstances that are tense, uncertain, and rapidly evolving — about the amount of force that is necessary in a particular situation. Id. at 396-97, 109 S.Ct. at 1872. To that end, the Fifth Circuit has adopted the following three-prong test for excessive force cases: the plaintiff must show (1) at least some injury, which (2) resulted directly and only from the use of force that was clearly excessive to the need, and the excessiveness of which was (3) objectively unreasonable. See Ikerd v. Blair, 101 F.3d 430, 434 (5th Cir. 1996) (citing Spann v. Rainey, 987 F.2d 1110, 1115 (5th Cir. 1993)).
D. State law tort claims
Johnson alleges that the officers' conduct during his arrest constituted assault as well as the intentional infliction of emotional distress.
To recover for the tort of assault, a plaintiff must prove that: (1) the defendant acted intentionally or knowingly; (2) causes physical contact with another; and that (3) the defendant knows or should reasonably believe that the other will regard the contact as offensive or provocative. See Foye v. Montes, 9 S.W.3d 436, 441 (Tex.App. — Houston [14th Dist] 1999, pet. denied) (citing TEX. PEN. CODE ANN. § 22.01(a)(3)).
In Texas, because an assault is both a criminal offense (i.e., an offense against the peace and dignity of the State), as well as a civil tort (i.e., an invasion of private rights), the definition of assault, whether in a criminal or civil context is the same. See id.
To recover for the tort of intentional infliction of emotional distress, a plaintiff must prove that: (1) the defendant acted intentionally or recklessly; (2) the conduct was "extreme and outrageous;" (3) the defendant's actions caused the plaintiff emotional distress; and (4) the resulting emotional distress was severe. Southwestern Bell Mobile Systems, Inc. v. Franco, 971 S.W.2d 52, 54 (Tex. 1998) (citation omitted). Generally, liability for intentional infliction of emotional distress has only been found in those cases in which a recitation of the facts to an average member of the community would lead him to exclaim, "Outrageous!" See Gearhart v. Eye Care Ctrs. of Am., Inc., 888 F. Supp. 814, 819 (S.D.Tex. 1995) (conduct is "outrageous" if it is "atrocious" and surpasses "all possible bounds of decency," such that it is "utterly intolerable in a civilized community.").
E. Defense of Official Immunity
In response to Johnson's state tort claims, each of the Defendants have raised the defense of official immunity under Texas state law.
Official immunity is an affirmative defense. City of Lancaster v. Chambers, 883 S.W.2d 650, 653 (Tex. 1994) (citing Perry v. Texas A I Univ., 737 S.W.2d 106, 110 (Tex.App.-Corpus Christi 1987, writ ref'd n.r.e.). Thus, the burden is on the defendant to establish all elements of the defense. Id. (citing Montgomery v. Kennedy, 669 S.W.2d 309, 310-11 (Tex. 1984)). Government employees are entitled to official immunity from suit arising from the performance of their (1) discretionary duties in (2) good faith as long as they are (3) acting within the scope of their authority. Id. (citing Baker v. Story, 621 S.W.2d 639, 644 (Tex.Civ.App.-San Antonio 1981, writ ref'd n.r.e.)).
In City of Lancaster, the Texas supreme court held that an action which involves personal deliberation, decision and judgment is discretionary, whereas actions which require obedience to orders or the performance of a duty to which the actor has no choice, are ministerial. Id. (citing Wyse v. Department of Pub. Safety, 733 S.W.2d 224, 227 (Tex.App.-Waco 1986, writ ref'd n.r.e.)). The court further noted that police officers exercise discretion while performing duties such as deciding when and how to arrest an individual. Id. (citing Dent v. City of Dallas, 729 S.W.2d 114, 117 (Tex.App.-Dallas 1986, writ ref'd n.r.e.)).
The court defined the test for determining good faith as an "objective legal reasonableness" test. Id.; see, infra.
V. Analysis
A. Kaufman County Sheriff's Deputy Joe Maddox
With respect to Plaintiff's allegations of unlawful arrest and use of excessive force in violation of the United States Constitution, actionable under 42 U.S.C. § 1983, Defendant Maddox moves for summary judgment on the basis that he is entitled to qualified immunity. In support of this defense, Maddox has submitted his declaration setting out facts relating to his participation in traveling to Plaintiff's residence, his interaction with Plaintiff, his observations of Plaintiff at the scene, and the struggle which ensued in effecting Plaintiff's arrest. In response to Maddox's assertion of qualified immunity, Johnson has tendered affidavits executed by himself and his wife, as well as by Ms. Carlene Fegan, Ms. Alicia Martin, and Mr. Ontarious White. It appears that Ms. Fegan, Ms. Martin, and Mr. White were not present to observe either the altercation between Plaintiff and the officers or Plaintiff's subsequent arrest. However, each of their affidavits states that the affiant did not observe Plaintiff consuming any alcoholic beverage on August 28, 1999.
See also Defs. Maloney and Pederson's App. at 042 (Maloney's Aff.)
When the declaration of Maddox and the affidavit of Timothy Maloney are juxtaposed with those of Plaintiff and his wife, it is readily apparent that the "facts" related in each party's summary judgment submissions are inconsistent and in many instances are in direct contradiction to the opponent's evidence, particularly as to the "facts" relating to Plaintiff's sobriety or state of intoxication, the conversation between Maddox and Johnson, and the circumstances under which force was used to handcuff and arrest Johnson. Moreover, whether probable cause existed for Plaintiff's arrest for the offenses of "interference with child custody" and/or "public intoxication" and whether Maddox's and Maloney's use of force, in effecting Johnson's arrest, was reasonable or excessive, is ultimately dependant on which side's version of the facts is found to be credible.
See, e.g., Pl.'s First Am. Compl. and Pl.'s App. (Affidavits of Johnson and his wife).
In Johnston v. City of Houston, 14 F.3d 1056, (5th Cir. 1994), the Fifth Circuit rejected the defendant's claim to summary judgment on the qualified immunity issue because "[d]ivergent versions of what happened" had been offered by the parties. Id. at 1058. In Johnston, the court held that because a genuine dispute as to the material and operative facts of the case existed ". . . [s]ummary judgment is inappropriate unless plaintiff's version of the violations does not implicate clearly established law." Id. at 1061. Subsequently, in Goodson v. City of Corpus Christi, 202 F.3d 730 (5th Cir. 2000) (citing Johnston), the Fifth Circuit held that a court cannot draw a conclusion of law from disputed facts. Id. Moreover, a case which turns on the credibility of witnesses' testimony should not be resolved on summary judgment. See Bazan v. Hidalgo County, 243 F.3d 481, 492 (5th Cir. 2001).
The dramatic and stark contrast between Maddox's version of the facts and that advanced by Plaintiff creates genuine issues of fact which preclude summary judgment in Maddox's favor. Therefore, the magistrate judge recommends that his motion for summary judgment as to Johnson's claims of unlawful arrest and excessive use of force be DENIED.
With respect to Johnson's state law claims for assault and intentional infliction of emotional distress, Maddox contends that he is entitled to summary judgment on the basis of his entitlement to official immunity under Texas state law, pursuant to City of Lancaster v. Chambers, 883 S.W.2d 650, supra.
In City of Lancaster, the Texas Supreme Court held that the test for official immunity was substantially derived from the "objective reasonableness" test employed by federal courts in analyzing qualified immunity under § 1983. See id. Accordingly, to the extent that the court cannot pass on the objective reasonableness of Maddox's conduct — an issue of law — in light of the existence of the genuine issues of fact discussed above, pursuant to Goodson v. City of Corpus Christi, supra, the magistrate judge recommends that Maddox's motion for summary judgment as to Johnson's state law claims also be DENIED.
B. TABC Agent Timothy Maloney
Defendant Maloney's participation in assisting and in subduing Plaintiff is also the subject of controverted evidence which likewise forecloses summary judgment in his favor. Therefore, the magistrate judge recommends that Maloney's motion for summary judgment as to Johnson's claims of unlawful arrest and excessive use of force likewise be DENIED.
With respect to Johnson's state law claims for assault and intentional infliction of emotional distress, Maloney also contends that he is entitled to the defense of official immunity. However, to the extent that the court must not decide issues of law based on disputed facts, see supra, the magistrate judge recommends that Maloney's motion as to Johnson's state law claims also be DENIED.
C. D.P.S. Trooper Kevin Pederson
The court finds that Trooper Pederson has presented competent, uncontroverted evidence that he was not present at Johnson's residence on the morning of August 29, 1999. According to Pederson's affidavit, he did not report to work until 7:00 am. on the morning of August 29. See Defs.' Maloney and Pederson's App. at 53-54 (Pederson's Aff) and 60-61 (Pederson's Highway Patrol Weekly Report). In addition to the fact that it is undisputed that Pederson was not at Plaintiff's residence, nor was he involved in his arrest and subsequent book-in, Plaintiff has presented nothing to show any personal involvement in the events giving rise to Plaintiff's claims.
See Pl.'s App. at 000066 (Maddox's Arrest Report); see also Defs. Maloney and Pederson's App. at 43 (Maloney's Aff.).
Personal involvement by a defendant is an essential element of a § 1983 cause of action. See Thompson v. Steele, 709 F.2d 381, 382 (5th Cir. 1983) (citing Rizzo v. Goode, 423 U.S. 362, 370-71, 96 S.Ct. 598, 604-05, 607, 46 L.Ed.2d 561 (1976) (an official cannot be held accountable under § 1983 unless the official's conduct "subjects or causes to be subjected, any . . . person . . . to the deprivation of any rights . . . secured by the Constitution . . . .").
Therefore, the magistrate judge recommends that Defendant Pederson's motion for summary judgment be GRANTED and that each of Johnson's claims against Pederson be DISMISSED WITH PREJUDICE.
D. Officer C. Lee
There is no dispute about the fact that Defendant Lee did not advise Plaintiff that he was under arrest. The declaration of Defendant Maddox as well as Plaintiff's affidavit make it clear that it was Maddox who informed Johnson that he was under arrest. However, Officer Lee's own affidavit makes it clear that he assisted Maddox and others in subduing Johnson after claiming to have observed him resisting arrest. Plaintiff's conduct upon being advised that he was under arrest is a matter in dispute. Compare Defendant Maddox's declaration at ¶¶ 19-22, with Plaintiff's affidavit at ¶¶ 4-5. Therefore, it cannot be found, as a matter of law, that Lee's involvement in subduing and hand-cuffing Plaintiff did not constitute excessive use of force. Johnston v. City of Houston, supra. Accordingly, the magistrate judge recommends that Lee's motion for summary judgment be DENIED.
With respect to Johnson's state law claims for assault and intentional infliction of emotional distress, Lee also contends that he is entitled to the defense of official immunity. However, to the extent that the court must not decide issues of law based on disputed facts, see supra, the magistrate judge recommends that Lee's motion as to Johnson's state law claims also be DENIED.
E. Kaufman County
Johnson claims that Defendant Kaufman County is liable for the conduct of Defendant Deputy Joe Maddox, under 42 U.S.C. § 1983, because it knew or should have known that its policies, procedures, training, and discipline were deficient with respect to informing its officers regarding the requirements of a lawful arrest and use of force and, further, that these deficiencies were the product of a deliberate indifference to the rights of its citizens.
Counties are "persons" within the meaning of § 1983. However, they may only be held liable if the constitutional harm suffered was the result of an "official policy, custom, or pattern." Monell v. New York City Dep't of Social Services, 436 U.S. 658, 690-94, 98 S.Ct. 2018, 2035-37, 2039, 56 L.Ed.2d 611 (1978). Governmental entities may not be held liable under either a theory of respondeat superior or vicarious liability. Oklahoma City v. Tuttle, 471 U.S. 808, 817, 105 S.Ct. 2427, 2433, 85 L.Ed.2d 791 (1985); Doe v. Taylor Indep. School Dist., 15 F.3d 443, 452 (5th Cir.) (en banc), cert. denied, 513 U.S. 815, 115 S.Ct. 70, 130 L.Ed.2d 25 (1994). They also may not be held liable under § 1983 for mere negligence in oversight. Rhyne v. Henderson Cty., 973 F.2d 386, 392 (5th Cir. 1992) (citing, City of Canton v. Harris, 489 U.S. 378, 387, 109 S.Ct. 1197, 1204, 103 L.Ed.2d 412 (1989) ("inadequacy of police training may serve as the basis for § 1983 liability only where the failure to train amounts to deliberate indifference to the rights of persons with whom the police come into contact").
When analyzing a § 1983 claim against a governmental body, a court must first decide if the municipality promulgated "an official policy, practice, or custom, " which could subject it to § 1983 liability. Monell, 436 U.S. at 690-94, 98 S.Ct. at 2035-37. The Fifth Circuit has defined an "official policy" as either: 1) a policy statement, ordinance, regulation, or decision that is officially adopted and promulgated by the municipality's law-making officers or by an official to whom the lawmakers have delegated policy-making authority; or 2) 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. Webster v. City of Houston, 735 F.2d 838, 841 (5th Cir. 1984). A plaintiff must then identify the policy, connect the policy to the governmental entity itself, and show that his injury was incurred because of the application of that specific policy. Bennett v. City of Slidell, 728 F.2d 762, 767 (5th Cir. 1984).
Johnson has wholly failed to present any evidence which would satisfy the first prong, supra, of the "official policy" test.
With respect to describing "custom or usage," the Supreme Court has used such phrases as "persistent and widespread . . . practices," "systematic maladministration" of the laws, practices that are "permanent and well-settled," and "deeply embedded traditional ways of carrying out . . . policy." Adickes v. S.H. Kress Co., 398 U.S. 144, 173-74, 90 S.Ct. 1598, 1617, 26 L.Ed.2d 142 (1970). Isolated violations, on the other hand, are not the persistent, oft-repeated, or constant violations that constitute custom and policy. Berry v. McLemore, 670 F.2d 30, 32 (5th Cir. 1982). For instance, the court in Berry held that a single, improper arrest is not the kind of systematic, municipally supported abuse that constitutes custom. Id.
In an effort to show the existence of a genuine issue of fact with respect to persistent practices and customs of the Kaufman County Sheriff's Department ("KCSD"), Plaintiff points to two circumstances which he claims establishes the existence of such "unofficial policies." First, he cites a recent opinion filed by a judge of this court in which it was found that Defendant Robert Harris, personally, along with other members of the KCSD engaged in a massive "strip search" of patrons found at a local club, which the court determined to be an official policy of Kaufman County. See, e.g., Pl.'s App. at 35-58 (Williams, et. al. v. Kaufman Co. and Kaufman Co. Sheriff Robert Harris, No. 3:97-CV-0875-L, 2002 WL 519814, (N.D.Tex. March 29, 2002)). Second, Johnson notes that when he asked a supervisor, who arrived on the scene following his arrest, to allow him to take a breathalyzer test at the scene, the supervisor summarily refused his request. See Pl.'s Aff. at ¶ 6.
The magistrate judge notes that Defendants Kaufman County and Robert Harris filed notices of appeal in Williams on April 29, 2002.
Neither circumstance gives rise to the existence of a genuine issue of fact. The constitutional violations alleged in Johnson's complaint are that he was arrested without probable cause and that he was subjected to an excessive use of force. The court notes that the incident in Williams occurred more than four years prior to Plaintiff's arrest. Therefore, reprehensible as that incident may have been — primarily due to the strip search of the plaintiffs and others — aside from its remoteness in time, it cannot support a fact issue with respect to the existence of a policy or custom sanctioning arrests without probable cause. Moreover, the facts of the instant case are inapposite from those present in Williams. For instance, in Williams, Harris was physically present at the Terrell area club and oversaw the strip searches as Kaufman County's final policy maker in the area of law enforcement, while in the instant case Harris was neither present nor personally involved in Johnson's arrest.
Defendant Robert Harris's declaration, stating that he was not present at Johnson's arrest, nor was he consulted prior to the arrest, has not been controverted by Plaintiff.
Nor does the fact that the supervisor refused to allow Johnson to take a breath test before being transported to jail raise any inference of a constitutional violation. Plaintiff has not identified and the court is not aware of any case authority which imposes such a duty on a law enforcement official. Therefore, the magistrate judge recommends that Kaufman County's motion for summary judgment as to Plaintiff's claims of unlawful arrest and excessive use of force be GRANTED.
Additionally, to the extent that Plaintiff seeks relief for the intentional torts of assault and/or intentional infliction of emotional distress, Defendant Kaufman County requests summary judgment on the basis of official immunity.
A Texas governmental unit cannot be held liable for causes of action brought under Texas state law unless the Texas Legislature has expressly waived that unit's governmental immunity. See Kellough v. Bertrand, 22 F. Supp.2d 602, 612 (S.D.Tex. 1998) (citation omitted) (state tort claims against the city were barred by sovereign immunity). This immunity has only been waived as to claims brought pursuant to the Texas Tort Claims Act ("TTCA"), as codified in TEX. CIV. PRAC. REM. CODE ANN. §§ 101.001-101.109, et. seq. Thus, Johnson's state law causes of action against Kaufman County are not cognizable unless they are expressly waived by the TTCA. See Kellough at 612.
A county constitutes a governmental unit, pursuant to TEX. CIV. PRAC. REM. CODE ANN. § 101.001(3)(B).
The TTCA provides that a municipality cannot be liable for any claims "arising out of assault, battery, false imprisonment, or any other intentional tort . . . ." Id. at § 101.057(2) (emphasis added). Therefore, to the extent that Plaintiff has alleged both assault and intentional infliction of emotional distress, both of which constitute intentional torts, against Kaufman County, such claims are barred by sovereign immunity. As such, the magistrate judge recommends that Defendant Kaufman County's motion for summary judgment as to Plaintiff's state tort law claims be GRANTED and that all of Johnson's claims against Kaufman County be DISMISSED WITH PREJUDICE.
F. Robert Harris
In the face of Defendant Robert Harris's uncontradicted declaration, see n. 12, supra, Plaintiff cannot establish any liability against Harris in the former sheriff's individual capacity. Moreover, to the extent that Johnson's claims against Harris are in his official capacity, such claims are properly brought against Kaufman County, the governmental entity of which he was an employee and representative, pursuant to Hafer v. Melo, 502 U.S. 21, 25 (1991) and Brooks v. George County, 84 F.3d 157, 165 (5th Cir. 1996) and, as such, are unavailing for the reasons stated above. Therefore, the magistrate judge recommends that Defendant Harris' motion for summary judgment as to all of Plaintiff's claims be GRANTED and that each of Johnson's claims against Harris be DISMISSED WITH PREJUDICE.
V. Recommendation
For the foregoing reasons, it is recommended that the District Court GRANT Defendants Kevin Pederson's, Kaufman County's, and Robert Harris's motions for summary judgment and that the District Court enter its partial judgment DISMISSING WITH PREJUDICE Plaintiff's claims against these Defendants.
It is further recommended that the District Court DENY Defendants Joe Maddox's, Timothy Maloney's, and C. Lee's motions for summary judgment.
NOTICE
In the event that you wish to object to this recommendation, you are hereby notified that you must file your written objections within ten days after being served with a copy of this recommendation. Pursuant to Douglass v. United Serv. Auto Ass'n, 79 F.3d 1415 (5th Cir. 1996) (en banc) a party's failure to file written objections to these proposed findings of fact and conclusions of law within such ten day period may bar a de novo determination by the district judge of any finding of fact or conclusion of law and shall bar such party, except upon grounds of plain error, from attacking on appeal the unobjected to proposed findings of fact and conclusions of law accepted by the district court.