Opinion
CIVIL ACTION NO. 3:00-CV-1955-P
November 28, 2001
MEMORANDUM OPINION AND ORDER
Now before the Court are the following:
1. Defendant Fredie M. Cohen's Motion for Summary Judgment, with brief in support and appendix, filed August 31, 2001;
2. Defendant Fredie Charles Cohen's Motion for Summary Judgment, with brief in support and appendix, filed August 31, 2001;
3. Plaintiff's Response to Defendants' Motions for Summary Judgment, with brief in support and appendix, filed October 4, 2001; and
4. Defendant Fredie Charles Cohen's Reply to Plaintiffs Response to Defendant's Motion for Summary Judgment, filed October 17, 2001.
After a thorough review of the summary judgment evidence, the pleadings, the parties' briefs, and the applicable law, for the reasons set forth below, the Court is of the opinion that Defendant Fredie M. Cohen's Motion for Summary Judgment should be GRANTED, and Defendant Fredie Charles Cohen's Motion for Summary Judgment should be DENIED.
BACKGROUND
This case arose out of the circumstances surrounding the repossession of Defendants' vehicle by Plaintiff Mike Manis on September 17, 1998. Defendants Fredie Morris Cohen (hereinafter "Fredie Cohen Senior" or "Fredie M.") and Fredie Charles Cohen (hereinafter "Fredie Cohen Junior" or "Fredie C."), father and son respectively, sometime in 1997 agreed to the purchase of a 1995 Land Rover vehicle. See PI.'s Orig. Compl. at 2-3. The vehicle was titled in the name of Fredie M. Cohen, although pursuant to their agreement, Fredie C. Cohen, the true owner of this vehicle, was required to make the monthly installments of $511.31 on the note Defendants' made for the purchase. See Id. at 3; see also Manis Aff. at 6.By September 14, 1998, the mortgage balance owed on Defendants' vehicle was in excess of $32,0000, and no payments had been made for more than 79 days (equal to three past due payments totaling $1,543.93). See Manis Aff. at 6. Thereafter, on September 15, 1998, Mercedes-Benz Credit Corporation contracted with Allied Finance Adjusters to repossess the 1995 Land Rover from Defendants, listed as located at 5709 Trio Lane, in Dallas, Texas. See McCollister Aff. at 1.
The parties disagree as to virtually every aspect of their interactions. Plaintiff Mike Manis says he arrived at approximately 6:35 a.m. on September 17, 1998, in a white Chevrolet tow truck with the name "Allied Financial Adjusters" printed on the door, in order to effect the repossession of Defendants' vehicle from the aforementioned address. See Manis Aff. at 2. According to Plaintiff, after the repossession was completed, and after he had placed the Land Rover completely out in the street, he stopped and telephoned the Dallas Police Department to inform them of the place of the repossession, the make, model, year of the vehicle, the VIN (Vehicle Identification Number), and the name of the storage facility where the vehicle would be kept. See Id. However, before he could go to the front door at 5709 Trio Lane to speak with Fredie M. Cohen, and while he was on the telephone with the Dallas Police Department, a red Nissan 240SX pulled up in front of the address and a uniformed off duty Dallas Police Officer (later identified as Fredie C. Cohen) got out and ran up to his tow truck. See Id. at 3. Plaintiff alleges that Fredie C. Cohen then removed a gun from his holster, opened the passenger side door, got into the truck's cab, and aimed the gun at Plaintiff's head, all the while demanding that he "drop" the repossessed unit. See Id. Thereafter, even after telling him that he was doing a legal repossession and that he had the Police Department on the phone, Officer Cohen allegedly responded to Plaintiff that "he didn't give a fuck." See Id.
Still holding the gun to Plaintiff's head, while repeatedly telling him to "drop" the Land Rover, Mr. Manis claims that Fredie Cohen Junior yelled at a nearby young lady to get his father, Fredie Cohen Senior, who then came out of the house and used a key to enter the repossessed vehicle. See Id. Officer Cohen then put his firearm back in his holster and came to the driver's side of the truck, where he allegedly repeated his cursing and screaming. See Id. at 3. Officer Cohen then proceeded to reach into the truck after opening the driver's side door, taking the keys out of the ignition and throwing them down the street. See Id. at 3-4.
According to Plaintiff, the police operator to whom he was speaking with on the telephone told him that she would send police officers to the location. See Id. at 4. Soon thereafter, Officer Cohen left the scene just as Fredie Cohen Senior, having started the Land Rover's engine, tried to forcibly drive the vehicle away from the tow truck. See Id.
Plaintiff further alleges that while he waited for the arrival of the dispatched officers, a young lady, later identified as Cheryl Cohen (daughter and sister of these Defendants), approached him from the house bearing a portable telephone and which she handed to him. See Id. According to Manis, the person on the phone said that he was a Captain with the Dallas Police Department and told Plaintiff he needed to drop the vehicle and leave the premises. See Id. However, Mr. Manis believes the person on the phone was none other than Fredie Cohen Junior, who was attempting to impersonate a Police Captain, and who again cursed and swore at him when Plaintiff said he was not dropping the repossessed vehicle before the police officers arrived. See Id.
Defendant Fredie C. Cohen, meanwhile, predictably tells a very different version of the events of September 17, 1998. At approximately 6:35 a.m. on that day, he arrived at his parents' residence at 5709 Trio Lane to drop off his two children, Justin and Shatara, before going to work. See Fredie C. Cohen Aff. at 1. Although he was wearing his police uniform that morning, he was headed to an off-duty security assignment at the Minyard Food Store after he dropped off his children. See Id. When the Defendant arrived at his parents' house, as he was getting Justin out of the car, he heard a noise that sounded like something dragging. See Id. at 1-2. Looking in the direction of the sound, he saw his 1995 Land Rover up in the air, being towed out of the driveway. See Id. at 2. Believing that his car was being stolen in the same manner as his father's car had been stolen only recently, he immediately ran toward the tow truck and upon reaching the passenger side yelled: "Police, stop the truck." See Fredie C. Cohen Aff. at 2.
Fredie Cohen Junior claims he had left his Land Rover vehicle at his parents' house because his father's car, a 1978 Cadillac, had been recently stolen on July 4, 1998. See Id. at 2. Apparently, the Cadillac had been parked in the same driveway as the Land Rover, from where Defendants both believe it was taken away by someone using a tow truck. See Id.; see also Fredie M. Cohen Dep. at 20, 36. Officer Cohen asserts that, as he ran toward Plaintiff's tow truck, he could not see Mr. Manis' hands, whom he believed was making gestures as if he was reaching for something on the passenger side of the truck. See Fredie C. Cohen Aff. at 2. Therefore, not knowing whether Plaintiff had a weapon, Officer Cohen drew his weapon and allegedly kept it pointed toward the truck at the door level. See Id. Finally, after Plaintiff stopped the truck, and upon asking him who he was, Manis allegedly responded that he was on the telephone with "you all" — indicating the police. See Id. The Defendant admits that Plaintiff told him he was in the process of effectuating a legal repossession, although he asserts that this did not occur immediately. See Orig. Answer Def. Fredie C. Cohen at 3. Thereafter, Officer Cohen claims he holstered his weapon, and denies that he ever pointed his weapon toward Plaintiff's face. See Id. In addition, Officer Cohen further denies that he pulled the passenger door open in Plaintiff's tow truck, or that he ever demanded the release of the repossessed vehicle by Plaintiff. See Id.
According to Officer Cohen, the tow truck began moving again, at which time claims he ordered Plaintiff to stop the truck, and then yelled to his sister, who was standing nearby, to tell his father Fredie M. Cohen to come outside and bring the Land Rover's keys. See Id. Officer Cohen claims that he was concerned about what appeared to be a repossession of his vehicle, although he acknowledges that he was behind on several of the payments for the Land Rover. See Fredie C. Cohen Aff. at 2. He asserts, however, that he had recently spoken to a representative from the finance company and believed that they had come to an agreement as to him making the necessary payments to discharge any delinquency in payments. See Id. at 2-3.
Thereafter, fearing that Plaintiff would attempt to leave by dragging the Land Rover and possibly damage its drive train, Defendant states he reached inside into the tow truck's cab, turned off the truck and tossed the keys in the seat (but not into the street). See Id. at 3. Meanwhile, Fredie Cohen Senior eventually came outside and entered the Land Rover, whereupon he followed his son's instructions to remain in the vehicle until the police arrived in order to make sure Manis' paperwork was legitimate. See Id.
According to Officer Cohen, he then left the location to go to his off-duty job at Minyard, and upon his arrival there, used his hand-held radio to contact the Dallas Police officers who were en route to his parents' house, informing them he would meet them there after he checked in. See Id. The Defendant admits that he called his parents' house to see if the police had arrived, but denies that he was ever on the phone with Plaintiff falsely claiming to be a Dallas Police Department Captain and demanding that he release the Land Rover. See Id. 3-4; see also Orig. Ans. Def. Fredie C. Cohen at 4.
Meanwhile, Defendant Fredie Cohen Senior asserts that he co-signed for the vehicle with his son, but that he was not aware of any default on the payments until after its repossession on September 17, 1998. See Fredie M. Cohen Dep. at 7-9. In addition, Fredie M. Cohen asserts that on the day of this incident he did not notice any indications on the sides of Plaintiff's tow truck indicating if was from a repossession company, since he never reached the truck because he approach it from behind and then he simply sat in the Land Rover to await the Dallas Police Officers' arrival. See Id. at17. Afterwards, he states a male sergeant told him that the tow truck driver had the legal right to repossess the vehicle and asked that he turn off the motor and get out of the car. See Id. at 40.
DISCUSSION
I. The Parties Claims
Plaintiff Mike Manis in this action asserts a right to recovery against Defendants Fredie M. Cohen and Fredie C. Cohen based on their violation of 42 U.S.C. § 1983. More specifically, Plaintiff alleges that Defendants unlawfully detained and/or arrested him without probable cause, used excessive force, and otherwise violated his Fourth Amendment rights under the United States Constitution. PL's Orig. Compl. at 6. In addition, Plaintiff alleges causes of action against Defendants for assault, battery, false arrest and/or false imprisonment under Texas state law. Id. at 7.
Meanwhile, Defendants have moved this Court for relief claiming that summary judgment is proper because (1) the summary judgment evidence shows that Fredie M. Cohen's car had been stolen from his drive way in the same manner as the Plaintiff was towing the Land Rover, and therefore there was reason to believe the vehicle was being taken without legal authority; (2) Plaintiff can demonstrate no personal knowledge of any agreements between Defendants to support a theory of conspiracy; (3) reasonable suspicion existed for Plaintiff's detention; (4) Plaintiff was never arrested; (5) the force used against Plaintiff did not rise to the level of a constitutional violation; (6) Defendants Fredie C. Cohen is shielded from liability by the doctrine of qualified immunity with respect to Plaintiff's federal claims; and (7) Defendant Fredie C. Cohen is shielded from liability by the doctrine of official immunity with respect to Plaintiff's state law claims. See Br. Def. Fredie M. Cohen's Mot. at 2; see also Br. Def. Fredie C. Cohen's Mot. at 3-15. Each of these arguments will be considered in turn.
II. Standard for Summary Judgment
Summary judgment shall be rendered when the pleadings, depositions, answers to interrogatories and admissions on file, together with affidavits, if any, show that there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). Summary judgment is appropriate in any case where the critical evidence is so weak or tenuous on an essential fact that it could not support a judgment in favor of the nonmovant. Little v. Liquid Air Corp., 37 F.3d 1069, 1076 (5th Cir. 1994). However, all evidence and the reasonable inferences to be drawn therefrom must be viewed in the light most favorable to the party opposing the motion. United States v. Diebold, Inc., 369 U.S. 654, 655 (1962).
The moving party bears the burden of informing the district court of the basis for its belief that there is an absence of a genuine issue for trial, and of identifying those portions of the record that demonstrate such an absence. Celotex, 477 U.S. at 323. Once the moving party has made an initial showing, the party opposing the motion must come forward with competent summary judgment evidence of the existence of a genuine fact issue. Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). The mere existence of some factual dispute will not defeat a motion for summary judgment. Willis v. Roche Biomedical Lab., Inc., 61 F.3d 313, 315 (5th Cir. 1995). Only disputes over facts that might affect the outcome of the suit under the governing law will preclude summary judgment. Id. Moreover, a dispute about a material fact is genuine only if the evidence is such that a reasonable jury could return a verdict for the nonmoving party. Id.
The Court will not, in the absence of any proof, assume that the nonmoving party could or would prove the necessary facts. Little, 37 F.3d at 1075. Therefore, if the nonmoving party fails to make a showing sufficient to establish the existence of an element essential to its case, and on which he bears the burden of proof at trial, summary judgment must be granted. Celotex, 477 U.S. at 322-323.
III. Qualified Immunity
"Qualified" or "good faith" immunity shields government officials performing discretionary functions from liability "unless their conduct violates clearly established statutory or constitutional rights of which a reasonable person would have known." Babb v. Dorman, 33 F.3d 472, 477 (5th Cir. 1994) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)). The shield of qualified immunity is generally available to government officials, such as Officer Fredie C. Cohen here, sued under 42 U.S.C. § 1983 in his individual capacity. See Goodson v. City of Corpus Christi, 202 F.3d 730, 736 (5th Cir. 2000); see also Anderson v. Creighton, 483 U.S. 635, 640 (1987).
In Seigert v. Gilley, 500 U.S. 226 (1991), the United States Supreme Court set forth the analytical framework for determining whether a plaintiff's allegations are sufficient to overcome a defendant's defense of qualified immunity. As a threshold matter, the Court must first determine whether the plaintiff has alleged a violation of a clearly established constitutional right. Seigert, 500 U.S. at 231-232. If the plaintiff is successful, the Court must then determine whether the defendants conduct was objectively reasonable in light of the "clearly established" law at the time of the alleged violation. Spann v. Rainey, 987 F.2d 1110, 1114 (5th Cir. 1993); see also Anderson, 483 U.S. at 639.
"Objective reasonableness" is a matter of law for the court to decide. Goodson, 202 F.3d at 736. The touchstone of this inquiry is whether a reasonable person would have believed that his conduct conformed to the constitutional standard in light of the information available to him and the clearly established law. Id. Therefore, "even law enforcement officials who `reasonably but mistakenly commit a constitutional violation' are entitled to immunity." Id.; see also Anderson, 483 U.S. at 641.
a. Claims of False Detention and Wrongful Arrest
Individuals have a federally protected right to be free from unlawful arrest and detention resulting in a significant restraint of liberty, and violation of this right can be grounds for a suit under § 1983. See Dennis v. Warren, 779 F.2d 245, 247 (5th Cir. 1985). The Fourth Amendment, of course, applies to all seizures of the person, including seizures that involve only a brief stop short
of traditional arrest. See Terry v. Ohio, 392 U.S. 1, 16-19 (1968). The constitutional standard for justifying such a particular intrusion demands that a police officer must be able to point to "specific and articulable facts" which, taken together with rational inferences from those facts, reasonably warrant that intrusion. Id. at 21.
Similarly, the Fourth Amendment requires that an arrest be supported by either a properly issued arrest warrant or probable cause. Glenn v. City of Tyler, 242 F.3d 307, 313 (5th Cir. 2001). Probable cause exists "when the totality of the facts and circumstances within a police officer's knowledge at the moment of an arrest are sufficient for a reasonable person to conclude that the suspect had committed or was committing an offense." Spiller v. City of Texas City Police Dept., 130 F.3d 162, 165(5th Cir. 1997). Under Texas law, a police officer may arrest an offender, without a warrant, for any offense committed in his presence or within his view. See Tex.Crim. Pro. Code Ann. Art. 14.01 (Vernon 2001).
In this case, Plaintiff alleges he was unlawfully detained and/or arrested at gun point by Officer Cohen on September 17, 1998, at a time when both Defendants knew that he was lawfully repossessing the 1995 Land Rover parked in the driveway at 5709 Trio Lane in Dallas, Texas. See PL's Orig. Compl. at 3. Since an illegal seizure as well as a wrongful arrest constitutes a violation of clearly established constitutional right, Plaintiff's allegations satisfy the first prong of the qualified immunity analysis for each of these claims.
If the plaintiff asserts a violation of constitutional rights, the second step of this analysis requires the Court to determine whether the official's conduct was objectively reasonable under the clearly established law as it existed at the time of the incident. See Bazan v. Hidalgo County, 246 F.3d 481, 490 (5th Cir. 2001). The Fifth Circuit's precedents are clear in pointing out that the question of "objective reasonableness" is a matter of law for the district courts to decide. See Goodson, 202 F.3d at 736; see also Lambkin v. City of Nacogdoches, 7 F.3d 430, (5th Cir. 1993). However, a summary judgment denial of qualified immunity is still appropriate if there are "underlying historical facts in dispute that are material to the resolution of the question of whether the defendants acted in an objectively reasonable manner." Mangieri v. Clifton, 29 F.3d 1013, 1016 (5th Cir. 1994). In this case, since so many discrepancies exist between the parties accounts as to Plaintiff's actions leading up to and including his detainment and/or arrest by Officer Cohen, the Court finds that as a matter of law, a genuine dispute of material fact exists as to whether reasonable suspicion for the stop or probable cause for an arrest existed at the time.
According to Plaintiff's version of these events, the Land Rover had been completely removed from the driveway before Officer Cohen arrived at 5709 Trio Lane. See Manis Aff. at 7. Meaning that, he was completely stopped in front of the residence, speaking on the phone with the police dispatcher, when Officer Cohen arrived. See Id. Further, Manis asserts that at no time during his encounter with Officer Cohen did he hear the Defendant say "Police, stop the truck," or was ever told to raise his hands or place his hands in the officer's view. See Id. More importantly, contrary to Defendant's version of this incident, Plaintiff states that Officer Cohen opened the passenger side door and entered into the truck, whereupon he could see that both of Plaintiff's hands were clearly within his field of vision — his left holding a cellular telephone and in his right hand, a clipboard with papers containing information on the Land Rover. See Id. at 8. Therefore, Manis asserts that he did not make any sort of sudden movement that could have been interpreted as an attempt to gain access to a weapon. See Id. Therefore, because such differing versions of these events "leave the Court without a coherent view of what actually happened in the first place," see Mangieri, 29 F.3d at 1016, the Court cannot draw the necessary conclusions of law from these disputed facts at the present summary judgment phase. See Goodson, 202 F.3d at 739. Therefore, the Court denies Defendant Fredie C. Cohen's request for qualified immunity as to these claims.
As for the Defendant Fredie M. Cohen, nowhere does the summary judgment record indicate that he ever instructed or assisted Officer Cohen in the detainment and/or arrest of Plaintiff in any manner. Additionally, Plaintiff Mike Manis, in his deposition, testified that he had no personal knowledge of any discussions between Fredie Cohen Senior and his son prior to September 17, 1998 with regards to the repossession of the 1995 Land Rover, nor that he was aware of any agreement between the Defendants to violate Plaintiff's constitutional rights. See Manis Dep. at 86-87. The only evidence being that Fredie Cohen Senior was told to stay in the vehicle by his son to await the arrival of the police to determine the legality of this repossession. See Fredie C. Cohen Aff. at 3. Therefore, having failed to allege sufficient involvement by Fredie Cohen Senior to lay a foundation for recovery under § 1983, the Court shall dismiss Plaintiff's claims of unlawful detention and/or false arrest as to Defendant Fredie M. Cohen here. See Johnston v. City of Houston, 14 F.3d 1056, 1060-1061 (5th Cir. 1994) (dismissing claims by plaintiff demonstrator who asserted claims of illegal detention and false arrest against police officer who did not participate in the plaintiff's detention or arrest).
b. Claims of Excessive Force
The Fourth Amendment also governs claims of excessive force used during an arrest. See Graham v. Conner, 490 U.S. 386, 394 (1989). In order to state a claim for excessive force in violation of the constitution, a plaintiff must allege "(1) an 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." Spann, 987 F.2d at 1115. The amount of injury necessary to satisfy the Fifth Circuit's requirement of "some injury" and establish a constitutional violation is directly related to the amount of force that is constitutionally permissible under the circumstances. Ikerd v. Blair, 101 F.3d 430, 434-435 (5th Cir. 1996). Therefore, the injury must be more than a de minimis injury, evaluated in the context in which the force was deployed. Glenn v. City of Tyler, 242 F.3d 307, 314 (5th Cir. 2001).
Although Defendant Fredie C. Cohen argues that Plaintiff Mike Manis was never arrested, see Br. Def. Fredie C. Cohen's Mot. at 3, the Court at this time does not need to reach this question since Defendant's argument that the force used against Plaintiff did not rise to the level of a constitutional violation assumes that at least a seizure of Manis took place here, see Id. at 4-5, which in turn is also governed by this Fourth Amendment analysis.
At one time the Fifth Circuit required a plaintiff to establish a "serious injury" in order to prevail in an excessive use of force action. See Johnson v. Morel, 876 F.2d 477 (5th Cir. 1989) (en banc). However such proof is no longer necessary since the Supreme Court invalidated that requirement in Hudson v. McMillan, 503 U.S. 1, 4 (1992). Today, the proper amount of injury required to prevail in such an action depends on the context in which the injury occurs. Ikerd v. Blair, 101 F.3d 430, 434 (5th Cir. 1996).
Plaintiff Mike Manis here alleges that Defendants' use of excessive force against him violated his constitutional rights because he did not resist lawful police authority, nor did the Defendants have any legal justification in using any force whatsoever against him on September 17, 1998. See Pl.'s Orig. Compl. at 6. Thus, as a result of Officer Cohen pointing his gun at Plaintiff's head, just a few inches from his face while holding the trigger with his index finger, Manis alleges that he has been severely and adversely affected. See Id. at 4, 6; see also Manis Aff. at 5, 8. More specifically, Plaintiff asserts that for several weeks after the event he had difficulty sleeping, and additionally, continues to have nightmares about this incident, including one where he dreams he is dead and that his wife and children are left alone without support. See Manis Aff. at 5. Further, Plaintiff claims he was forced to resign from his job by not being able to continue working as a repossessor for fear of being placed in a dangerous life-threatening situation. See Id. In contrast, Officer Cohen denies that he that he pointed his gun at Plaintiffs face, but maintains that he only that he only pointed it toward Plaintiff's tow truck, at the door level. See Orig. Ans. Def. Fredie C. Cohen at 3; see also Fredie C. Cohen Aff. at 2.
In Hinojosa v. City of Terrell, Texas, 834 F.2d 1223, 1229-1231 (5th Cir. 1988), the Fifth Circuit reversed a jury's finding of a constitutionally excessive use of force under the Fourteenth Amendment when a confrontation between the plaintiff and defendant police officer resulted in the officer drawing his gun and pointing it at plaintiff's face. See Id. at 1224-1226. More specifically, the Hinojosa Court held that, since plaintiff suffered no physical injury, and at most, only the immediate emotional distress of being made a target at gun point, his injury of temporary emotional distress did not constitute a meaningful injury, as required at the time by Shillingford v. Holmes, 634 F.2d 263, 265 (5th Cir. 1981). See Hinojosa, 834 F.2d at 1229-1230. In addition, such as in that case where the defendant was faced with a situation in which a fellow officer was on the ground engaged in a physical altercation outside a pool hall surrounded by agitators, the Court found no evidence that the officer's mere pointing of the gun was grossly disproportionate to the need for the action under the circumstances. See Id. at 1230.
The Hinojosa Court, however, did not reach whether "some type of physical injury will in every instance be necessary for section 1983 liability in a use of excessive force claim." See Id. Morever, having been decided prior to the Supreme Court's decision in Hudson v. McMillan, 503 U.S. 1, 4 (1992), which eliminated the requirement of a "serious injury" in order to prevail in an excessive use of force action, see Footnote 2 supra, the Hinojosa analysis has now been supplanted by the view that a psychological injury may suffice to support a constitutional claim of excessive force in an action under Section 1983. See Dunn v. Denk, 79 F.3d 401, 403-404 (5th Cir. 1995) (en banc) (noting that whatever injury requirement (if any) may remain after Hudson respecting a claim for excessive force may be satisfied by an alleged psychological injury); see also Hodge v. Layrisson, No. CIV. A. 97-555, 1998 WL 564263 at *5 (E.D. La. Sept. 1, 1998) (finding sufficient plaintiff's allegations of emotional and psychological stress, sleep deprivation, and frequent crying found sufficient); Thompson v. City of Galveston, 979 F. Supp. 504, 509-510 (S.D.Tex. 1997), aff'd 158 F.3d 583 (5th Cir. 1998) (finding that an action might lie for excessive force for a police officer holding a gun to the head of a nine year old and threatening to pull the trigger). Therefore, this Court finds that Plaintiff, although his alleged injuries can be characterized only in terms of emotional distress with no manifestations of an accompanying physical injury, they are nonetheless sufficient to satisfy the "injury" prong required in order to state a claim for excessive force in violation of the constitution.
Nevertheless, due to the discrepancy between the parties' versions of the events surrounding the extent and use of the gun by Officer Cohen on September 17, 1998, the Court finds there are genuine issues of material fact which preclude the granting of summary judgment. This is so because Plaintiff's excessive force claim likely will turn on whether Defendant Fredie C. Cohen did in fact point his gun at Manis' face. See Hodge, 1998 WL 564263 at *5 (finding the same). Plaintiff, however, has once again has failed to allege sufficient involvement by Defendant Fredie M. Cohen to lay a similar foundation for recovery under § 1983, and thus all claims of excessive force as to this Defendant shall be dismissed.
IV. Texas Official Immunity
In addition to his federal claims, Manis in his suit alleges causes of action against the Defendants for assault, battery, false arrest and/or false imprisonment under Texas state law. Pl.'s Orig. Compl. at 7. Under Texas law, police officers are entitled to official immunity from such state law claims if the suit arises: (1) from the performance of their discretionary duties; (2) performed in good faith; (3) while acting within the scope of their authority. See Jones v. City of Grand Prairie, No. Civ. 3:97-CV-1907-H, 1999 WL 21047 at *8 (N.D. Tex. Jan. 6, 1999) (Sanders, S.J.) ( citing Lancaster v. Chambers, 883 S.W.2d 650, 653 (Tex. 1994). If an action involves personal deliberation, decision and judgment, it is considered for purposes of the officer's state law official immunity, as a discretionary act. See Id. An officer acts in good faith in pursuit of a case if a reasonably prudent officer, under the same or similar circumstances, could have believed that his actions were lawful. Id. And finally, an official acts within the scope of his authority if he is discharging the duties generally assigned to him. Id.
Because this Court has already held that a genuine issue of material fact exists as to whether Manis was lawfully detained and/or arrested based on the disputed evidence before the Court, Defendant Fredie C. Cohen's motion for summary judgment must be denied. The Court cannot decide, as a matter of law, whether Officer Cohen performed his duties "in good faith," or whether he employed his police powers against Plaintiff for purely personal reasons. However, to the extent that Plaintiff alleges any claims of assault, battery, false arrest and false imprisonment against Defendant Fredie M. Cohen, for the same reasons as stated above, summary judgment shall be granted as to him because of his noninvolvement in either Manis' detention, arrest and/or use of any excessive force in this case.
CONCLUSION
Accordingly, upon careful review of the parties' arguments and the relevant law, for the reasons stated previously, the Court concludes that Defendant Fredie M. Cohen's Motion for Summary Judgment based on Plaintiff's federal claims of false detention, wrongful arrest, excessive force, and violation of the Fourth Amendment, as well as Plaintiff's state law claims for assault, battery, false arrest and false imprisonment shall be and are hereby GRANTED. Furthermore, the Court concludes Defendant Fredie C. Cohen's Motion for Summary Judgment based on Plaintiff's federal law claims of false detention, wrongful arrest, excessive force and violation of the Fourth Amendment, as well as Plaintiff's state law claims of assault, battery, false arrest and false imprisonment shall be and are hereby DENIED.So Ordered.