Opinion
3-02-CV-975-M
October 7, 2003
FINDINGS, CONCLUSIONS AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
Pursuant to the District Court's order filed on October 2, 2002 and the provisions of 28 U.S.C. § 636(b)(1)(B) and (C), came onto be considered defendants' Motion for Summary Judgment filed on August 8, 2003, plaintiffs response thereto filed on August 29, 2003, and defendants' reply filed on September 12, 2003, and the magistrate judge finds and recommends as follows:
Plaintiff has alleged multiple causes of action against these defendants, named in their individual capacities, as well as the City of Irving, Texas. In their motion for summary judgment the police officers have raised, inter alia, the defense of qualified immunity. Defendant City of Irving seeks summary judgment on the basis that, as a matter of law, the city cannot be held liable for the conduct which occurred on June 10, 2001, at Texas Stadium.
Applicable law:
Summary judgment is appropriate where the moving party establishes that "there is no genuine issue of material fact and that [the moving party] is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). The moving party must show that if the evidentiary material of record were reduced to admissible evidence in court, it would be insufficient to permit the non-moving party to carry its burden of proof. Celotex v. Catreet, 477 U.S. 317, 327, 106 S.Ct. 2548, 2554, 91 L.Ed.2d 265 (1986).
The opposing party must set forth specific facts showing a genuine issue for trial and may not rest upon the mere allegations or denials of its pleadings. Fed.R.Civ.P. 56(e); Anderson v. Liberty Lobby. Inc., 477 U.S. 242, 249, 106 S.Ct. 2505, 2511, 91 L.Ed.2d 202 (1986). All facts and inferences must be construed in the light most favorable to the non-moving party.
The magistrate judge has considered the pleadings of the parties, including their respective appendices. The evidence presented in support of defendants' motion for summary judgment and that presented by plaintiff in opposing the motion establishes that the plaintiff became involved with officers of the Irving, Texas Police Department, on the evening of June 10, 2001, while plaintiff, her husband and friends, were attending a concert at Texas Stadium in Irving, Texas.
Although plaintiff made no effort to identify with particularity what portion of her appendix she relies on to demonstrate genuine issues of fact, the magistrate judge has carefully reviewed all 159 pages of the appendix which she filed with her response. See Keiser v. Coliseum Properties. Inc., 614 F.2d 406, 410 (5th Cir. 1980).
The circumstances which occasioned the interaction between plaintiff and the police officers was the arrest of Karl Waine initiated by defendant Junker after Junker observed Waine grabbing his wife's hair and tugging her head back. In effecting Waine's arrest Junker was assisted by defendant Rodriguez. When it became obvious that the police were going to arrest Waine, both his wife, Angie Waine, and plaintiff began to protest the police action.
There is a dispute over the extent of physical contact between Waine and his wife. As noted above Officer Junker testified in his deposition that Waine grabbed his wife's hair, while Waine, himself, and his wife testified that Waine merely touched her shoulder and touched the tip of her ponytail. See Defendants' Appendix Exhibit 10, 189-190; Exhibit 11, 213. However, there is no material genuine issue of fact regarding that which initiated the interaction between the police officers and plaintiff, since it is undisputed that the officers were in the course of arresting Mr. Waine.
Plaintiff has no standing to complain concerning the probable cause for Karl Waine's arrest. Further, Waine pled no contest to a subsequently filed assault charge. Exhibit 10, supra, at 199; Exhibit 18, 332-35.
Defendant Rodriguez assisted defendant Junker in effecting Mr. Waine's arrest. There is a dispute in the witnesses' testimony as to whether Rodriguez knocked Ms. Jones down when going to defendant Junker's aid. Accepting as true that Rodriguez caused her to fall, such fact does not support a § 1983 claim against Rodriguez for this incidental contact. There is nothing before the court, including plaintiffs affidavit, from which a fact finder could determine that this contact was other than accidental or at most negligent. E.g. see Defendant's Appendix, Exhibit 12 at 238-239; Exhibit 14 at 269; Exhibit 16 at 298-99.Davidson v. Cannon, 474 U.S. 344, 106 S.Ct. 668 (1986). Moreover, this incident occurred before there was any interaction between plaintiff and the police officers.
Probable Cause for Plaintiffs Arrest:
Although defendants' summary judgment exhibits provide ample evidence of probable cause for plaintiff's arrest, if found to be credible, such evidence is specifically controverted by plaintiff's opposing affidavit. See Plaintiffs Appendix, Affidavit of Plaintiff at 135-36, thereby creating a genuine issue of fact with respect to whether there was probable cause for her arrest.
Angie Waine, who was arrested at the same time as plaintiff, entered a plea of no contest to the offense of hindering arrest and was placed on deferred adjudication. Defendant's Appendix, Exhibit 11 at 220-21.
The fact that the issue of probable cause is at issue also forecloses summary judgment with respect to plaintiffs malicious prosecution claim. Defendants point out that an acquittal on formal charges brought does not preclude a finding that a civil rights defendant has qualified immunity. E.g. see Baker v. McCallan, 443 U.S. 137, 145, 99 S.Ct. 2689, 2695 (1979). Nor does the fact of plaintiff's acquittal — standing alone — satisfy the requirements of a malicious prosecution claim, particularly where, as here, it appears that the acquittal was predicated upon a variance between the means alleged in the charging document, to wit: "by jumping on the officer's back" and the proof that in hindering Karl Waine's arrest, plaintiff did not jump on the officer's back.
Plaintiff seeks to hold each individual defendant liable for her arrest without probable cause. The summary judgment evidence clearly shows that defendant Junker made the decision to arrest Ms. Jones and was the person responsible for filing charges. See Plaintiffs Appendix at 51-52; 55 and 76 (Steve Junker's deposition at pages 55-56). The mere fact that he spoke with the other individual defendants about whether to charge plaintiff with hindering the arrest of Karl Waine or with the more serious offense of assault on a police officer is insufficient as a matter of law to render any defendant other than Steve Junker liable for arresting plaintiff without probable cause.
Alternatively, even if the court were to find a basis for liability as to the defendants that participated in effecting plaintiffs arrest, defendant Mark Peel is nonetheless entitled to summary judgment in his favor. In his affidavit Peel relates that his only involvement in the incident was to provide crowd control while other officers effected the arrests of the Waines and plaintiff. See Defendants' Appendix, Exhibit 5 at ¶ 6. See also Plaintiffs Appendix at 125 (Mark Peel's deposition at 28). Ms. Jones attempts to show his involvement by innuendo, pointing to a report authored by Stephen Junker to the effect that three officers in addition to Junker were involved. See Plaintiffs Appendix at 055. But compare Plaintiffs Appendix at 052. These reports are hearsay as they relate to defendant Peel and therefore are not competent to demonstrate a genuine issue of fact refuting Peel's testimony that he did not participate in plaintiffs arrest.
Excessive Use of Force: It is undisputed that defendants Dennis Lambrecht and John Rodriguez escorted plaintiff from the "breezeway" where she was arrested to the temporary jail facility located on the premises of Texas Stadium. It is also undisputed that these defendants were aware of the fact that plaintiff was wearing a "boot"-type cast on her leg at the time. In their respective affidavits, See Defendants' Appendix at Exhibits 4 and 7, each denies that they handcuffed Ms. Jones in a matter to purposely cause pain and discomfort or that they forced her to walk down the ramp at a brisk pace, notwithstanding her visible physical impairment. However, as with plaintiffs claim that she was arrested without probable cause, Ms. Jones has presented sworn testimony that these defendants handcuffed her using unnecessary force, that they refused her request to loosen the handcuffs and forced her to walk at a fast pace which aggravated her preexisting injury. E.g. see Plaintiffs Appendix, Affidavit of Tammie Jones at 136-137. Accordingly genuine issues of fact exist with respect to plaintiffs claim of excessive use of force.
Municipal liability:
Ms. Jones also seeks to hold the City of Irving liable on a claim that the city failed to properly train and supervise the individual defendant police officers. In order to establish municipal liability under this theory of recovery a plaintiff must prove (1)inadequate training procedures; (2) that the inadequate training caused one or more of the individual police officers to arrest plaintiff without probable cause and/or to use excessive force following her arrest; and (3) the deliberate indifference of municipal policy makers. See Pineda v. City of Houston. 291 F.3d 325, 331-332 (5th Cir. 2002) cert. denied, ___ U.S. ___, 123 S.Ct. 892 (2003). For the purposes of this recommendation the magistrate judge assumes that the Irving Chief of Police is a responsible policy maker.
The affidavits of each individual defendant show that each had received extensive law enforcement training. See Defendants' Appendix at Exhibits 4, 5, 6 and 7. These unrefuted facts foreclose plaintiffs ability to satisfy the first element of her failure to train claim. Moreover, in her deposition Ms. Jones conceded that she was unaware of any policy or custom of the City of Irving which authorized or condoned illegal arrests or the use of excessive force by its police officers. See Defendants' Appendix Exhibit 3 at 145-147. Absent a policy or custom in violation of protected rights a municipality cannot be held liable under § 1983. See Monell v. New York City Department of Social Services, 436 U.S. 658, 694, 98 S.Ct. 2018, 2037-38 (1978); See also Webster v. City of Houston, 735 F.2d 838, 853 (5th Cir. 1984) (defining criteria for municipal liability). In an effort to demonstrate a genuine issue of act with respect to the claimed liability of the city plaintiff has submitted the affidavit of Sean Seibut, a former Irving Police Department officer.See Plaintiffs Appendix at 153, et seq. The statements made therein are largely incompetent, since they fail to show his personal knowledge with respect to the facts recited. Further, they are largely irrelevant to the issues in this case since they relate to internal affairs matters, alleged to have occurred in 1997 through February 2001, again without proof of personal knowledge. Nor can plaintiff find any support for city liability in the testimony of Lowell Canady. See Plaintiff's Appendix at 141, et seq. Therefore the City of Irving is entitled to summary judgment.
In her amended complaint Ms. Jones alleges that she was detained for an inordinate period of time at the Irving City Jail following her arrest. See Plaintiffs Amended Complaint at ¶ 11. Each of the individual defendants has denied in their respective affidavits that they told any jail personnel that plaintiff was intoxicated or that they had anything to do with the duration of her confinement. Plaintiff reiterates her claim in her affidavit filed in opposition to defendants motion for summary judgment. Plaintiffs Appendix at 137-38. Her surmise that one of the defendant officers told jail personnel that she was intoxicated is insufficient to create a genuine issue of fact in the face of their affidavits expressly denying such a communication. Further, the single incident of plaintiff's confinement at the city jail, assuming the truth of her sworn statements, is insufficient to establish a policy or custom adopted and followed by the City of Irving.
CONCLUSION:
For the foregoing reasons the existence of genuine issues of fact with respect to plaintiffs claims against defendant Steve Junker for arrest without probable cause and for malicious prosecution and with respect to her claim that defendants Lambrecht and John Rodriguez used excessive force, foreclose these defendants' motion for summary judgment on these claims. See Johnson v. Jones, 515 U.S. 304, 115 S.Ct. 2151 (1995); Tamaz v. City of San Marcos. Texas, 62 F.3d 123, 125 (5th Cir. 1995) (citingLion Boulos v. Wilson, 834 F.2d 504, 509 (5th Cir. 1987).
With respect to the remainder of the claims brought by plaintiff, defendants are entitled to summary judgment.
RECOMMENDATION:
It is recommended that the District Court enter its order granting defendants' motion for summary judgment, except for plaintiffs claim against defendant Steve Junker, with respect to her claim that she was arrested without probable cause and was subject to malicious prosecution and except for plaintiffs claim against defendants Dennis Lambrecht and John Rodriguez for the excessive use of force.
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 toDouglass v. United Servs. 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.