Opinion
No. 3:03-CV-0672-P.
March 18, 2005
MEMORANDUM OPINION AND ORDER
Now before the Court are the following motions:
1. Defendant Andrew L. Clark's Motion for Summary Judgment ("Clark's Motion"), filed December 20, 2004,
2. Motion for Summary Judgment of Defendants Lowell Cannaday, Jimmy Henderson, Robert Sheffer and the City of Irving ("Irving Defendants' Motion"), filed January 13, 2005, and
3. Irving Defendants' Objections to Portions of the Purported Evidence Offered by the Plaintiff in Support of his Response to their Motion for Summary Judgment ("Irving Defendants' Objections"), filed February 25, 2005.
Plaintiff filed a Response to both summary judgment motions on February 2, 2005. Defendants Lowell Cannaday, Jimmy Henderson, Robert Sheffer and the City of Irving filed a Reply on February 25, 2005. Defendant Andrew L. Clark did not file a Reply.
Plaintiff filed a Response to the Objections on March 3, 2005. Defendants Lowell Cannaday, Jimmy Henderson, Robert Sheffer and the City of Irving filed a Supplemental Brief in Support of their Objections on March 4, 2005 and a Reply on March 7, 2005.
After a thorough review of the pleadings, the briefing, the summary judgment evidence, and the applicable law, the Court GRANTS IN PART and DENIES IN PART Clark's Motion and GRANTS IN PART and DENIES IN PART the Irving Defendants' Motion. The Court also DENIES AS MOOT IN PART and DENIES ON MERITS IN PART the Irving Defendants' Objections.
I. Background
Plaintiff's and Defendants' versions of the facts vary significantly. However, when a party moves for summary judgment, the Court presumes that the non-movant's version of the facts is correct to the extent the non-movant's version is supported by evidence or reasonable inferences therefrom. See Eastman Kodak Co. v. Image Technical Servs., Inc., 504 U.S. 451, 456 (1992). Therefore, because Plaintiff is the non-movant in this case, the Court primarily utilizes Plaintiff's version of the facts, as set forth below, to determine these Motions.
Plaintiff Sean Eric Lee Seibert ("Seibert") was a police officer for the City of Irving, Texas from June 1994 through March 2001. (Pl.'s App. at 17.) In March 2001, Seibert was fired for insubordination because he refused to stay away from Michelle Fleming ("Fleming"), a woman who had accused him of stalking. (Pl.'s App. at 19; Irving Defs.' Br. in Supp. of Summ. J. at 3.) On April 10, 2001, Seibert wrote an e-mail that he sent to Andrew L. Clark ("Clark"), among others. (Pl.'s App. at 27, 39.) In the e-mail, Seibert expressed frustration with being alone and frustration over past relationships, particularly his relationship with Fleming. ( See Pl.'s App. at 39.) He also expressed some desperation, writing "I have decided that certain things need to happen with certain deadlines. If they do not then I know what has to happen. I can not [sic] afford to go through another [breakdown]." Id.
Clark, a police officer for the City of Carrollton, Texas (Def. Clark's App. at Ex. A, p. 1), was a person who Plaintiff had at one time regarded as a close friend. ( See Pl.'s App. at 27.) However, according to Plaintiff, when Clark received the e-mail on April 12, 2001, he made up lies about Plaintiff and forwarded these lies along with the Plaintiff's e-mail to the Irving Police Department (Pl.'s App. at 18), leading the Irving Police to believe that Plaintiff was a substantial risk of harm to himself or others. (Irving Defs.' Br. in Supp. of Summ. J. at 2-4.) Specifically, Clark told officers in the Irving Police Department that on April 12, 2001, Seibert told Clark over the phone that he planned to kill himself. (Pl.'s App. at 18.) Clark also told the Irving Police that when Clark was in the military with Seibert in 1996, Clark prevented Seibert from committing suicide when Seibert found out that his wife wanted a divorce. Id. at 18. Clark added that Plaintiff has previously sent him an e-mail, which stated that Plaintiff hated cops and blamed them for his problems. (Irving Defs.' App at 57.)
According to Plaintiff, in the phone conversation he had with Clark on April 12, 2001, they discussed meeting for coffee and Plaintiff told Clark he would not be able to meet with him until April 18, 2001. Id. at 28-29. In the same conversation, when Clark asked Plaintiff how he was doing, Plaintiff responded that he was "fine." Id. Plaintiff maintains that he never represented to Clark that he was going to kill himself and that he never attempted suicide in the presence of Clark. Id. at 23. Plaintiff also maintains that he does not hate cops. Id.
Shortly after receiving the information provided by Clark, the Irving Police Department sent Investigator Matt Drumm ("Drumm") to Plaintiff's residence to monitor him from the roadway. (Irving Defs.' Br. in Supp. of Summ. J. at 4.) When Plaintiff left his home in his vehicle, Drumm followed him until Plaintiff pulled into a parking lot near Fleming's office. Id. at 4-5. Drumm approached Plaintiff with his gun drawn (Pl.'s App. at 29) and then kept Plaintiff in the parking lot until a Tactical Squad of the Irving Police Department arrived. (Irving Defs.' Br. in Supp. of Summ. J. at 5.) Acting pursuant to Texas Health Safety Code § 573.001, officers in the Tactical Squad detained plaintiff and took him to Parkland Hospital, a mental health facility. Id. At Parkland Hospital, Sergeant Scott Weidmann ("Sergeant Weidmann"), acting on orders of Captain Bruce Jolley ("Captain Jolley") (Irving Defs.' App. at 143) completed a "Peace Officer Application For Emergency Detention" using information Clark had provided to the Irving Police. (Irving Defs.' Br. in Supp. of Summ. J. at 4.) Consequently, Plaintiff was kept at Parkland Hospital for approximately forty-eight hours. Id. at 5.
Texas law authorizes officers to take mentally ill persons into custody without a warrant when they believe there is a substantial risk of serious harm to the person or to others and there is not sufficient time to obtain a warrant before taking the person into custody. Texas Health Safety Code § 573.001(a)(1). Officers may form this belief that a person poses a substantial risk of serious harm to himself or others based on the person's behavior or a representation of a credible person. Texas Health Safety Code § 573.001(c). After arresting a person based on such belief, officers must immediately transport the person to a mental health facility. Texas Health Safety Code § 573.001(c).
The Chief of the Irving Police, Lowell Cannaday ("Cannaday" or "Chief Cannaday"), was kept aware of the situation involving Plaintiff (Irving Defs.' App. at 226) and was present when Captain Jolley ordered Plaintiff's detention (Irving Defs.' App. at 143), but Chief Cannaday himself did not give any orders relating to Plaintiff. (Irving Defs.' App. at 143, 117, 226.)
Later that same day, Irving Police Officer Jimmy Henderson ("Henderson") and Irving Police Officer Robert Sheffer ("Sheffer") entered Plaintiff's house without a warrant and conducted a search. (Irving Defs.' Br. in Supp. of Summ. J. at 21.) Subsequently, to justify their entry, Plaintiff alleges these officers fabricated a story that the gate and doors of Plaintiff's home were open when they arrived, leading them to suspect that a burglary had occurred or was in progress. (Pl.'s App. at 32-33; see Irving Defs.' Br. in Supp. of Summ. J. at 6.)
On April 3, 2003, Plaintiff filed this lawsuit against Defendants Cannaday, Henderson, Sheffer, Clark, and the City of Irving. Plaintiff asserts 42 U.S.C. § 1983 claims for false arrest and illegal search as well as state common law claims for assault, battery, false arrest, false imprisonment, and trespass. Plaintiff seeks punitive damages in addition to compensatory damages from Cannaday, Henderson, Sheffer, and Clark ("Individual Defendants").
Defendants Cannaday, Henderson, Sheffer, and the City of Irving ("Irving Defendants") now move for summary judgment. In a separate motion, Defendant Clark also moves for summary judgment.
II. Summary Judgment Legal Standard
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. See Fed.R.Civ.P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). 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. See id. 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. See United States v. Diebold, Inc., 369 U.S. 654, 655 (1962).
Once the 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. See Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). The party defending against the motion for summary judgment cannot defeat the motion unless he provides specific facts that show the case presents a genuine issue of material fact, such that a reasonable jury might return a verdict in his favor. See Anderson v. Liberty Lobby, 477 U.S. 242, 248 (1986). Mere assertions of a factual dispute unsupported by probative evidence will not prevent a summary judgment. See id. at 248-50; Abbot v. Equity Group, Inc., 2 F.3d 613, 619 (5th Cir. 1993). In other words, conclusory statements, speculation and unsubstantiated assertions will not suffice to defeat a motion for summary judgment. See Douglass v. United Servs. Auto. Ass'n, 79 F.3d 1415, 1429 (5th Cir. 1996) ( en banc).
Finally, the Court has no duty to search the record for triable issues. Ragas v. Tenn. Gas Pipeline Co., 136 F.3d 455, 458 (5th Cir. 1998). "The party opposing summary judgment is required to identify specific evidence in the record and to articulate the precise matter in which the evidence supports his or her claim." Id. A party may not rely upon "unsubstantiated assertions" as competent summary judgment evidence. Id.
III. Motions of Irving Defendants' and Defendant Clark for Summary Judgment
A. Defendant City of Irving
Plaintiff asserts only § 1983 claims against the City of Irving (the "City"). In order to establish the City's liability under § 1983, Plaintiff must show municipal liability. That is, "[l]ocal governing bodies . . . can be sued directly under § 1983 where the action that is alleged to be unconstitutional implements or executes a policy statement, ordinance, regulation, or decision officially adopted and promulgated by that body's officers." Monell v. Department of Social Servs., 436 U.S. 658, 690 (1978). However, "a municipality cannot be held liable solely because it employs a tortfeasor." Id. at 691. "Instead, it is when execution of a government's policy or custom, whether made by its lawmakers or by those whose edicts or acts may fairly be said to represent official policy, inflicts the injury that the government as an entity is responsible under § 1983." Id. at 694.
To establish municipal liability, a plaintiff must prove that (1) the local government or official promulgated a policy; (2) the policy displayed "deliberate indifference" and proved the government's culpability; and (3) the policy led to the particular injury. Foust v. McNeill (In Re Foust), 310 F.3d 849, 861 (5th Cir. 2002). To satisfy the first element, a plaintiff must prove that the City's alleged actions are a result of either formal policy or informal policy. Formal policy consists of "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." Pineda v. City of Houston, 291 F.3d 325, 328 (5th Cir. 2002). Informal policy consists of "a persistent, widespread practice of city officials or employees which, although not authorized by officially adopted and promulgated policy, is so common and well settled as to constitute a custom that fairly represents municipal policy." Id.
"Isolated violations are not the persistent, often repeated, constant violations that constitute custom and policy." Bennett v. City of Slidell, 728 F.2d 762, 768 n. 3 (5th Cir. 1984). Rather, to establish an informal policy, Plaintiff must show a "pattern of similar incidents in which citizens were injured or endangered by intentional or negligent . . . misconduct and/or that serious incompetence or misbehavior was general or widespread . . ." See Languirand v. Hayden, 717 F.2d 220, 227-228 (5th Cir. 1983). Moreover, generally to prove deliberate indifference, a plaintiff must demonstrate "a pattern of similar violations arising from [the policy] that is so clearly inadequate as to be obviously likely to result in a constitutional violation." Burge v. St. Tammany Parish, 336 F.3d 363, 370 (5th Cir. 2003). Liability may only be based on a single incident if a plaintiff proves that the "`highly predictable' consequence of [the policy] would result in the specific injury suffered, and that [the policy] represented the `moving force' behind the constitutional violation." Roberts v. City of Shreveport, 397 F.3d 287, 291-92 (5th Cir. 2005) (citing Brown v. Bryan County, 219 F.3d 450, 461 (5th Cir. 2000)).
Plaintiff does not complain of any official formal policy. Rather, Plaintiff complains of two informal policies. First, Plaintiff asserts that it is the policy or practice of Chief Cannaday, as a policymaker, and other city policymakers to inadequately supervise members of the City's Police Department, thereby allowing "illegal arrests and/or illegal searches of the homes of Irving police officers." (Pl.'s Compl. at 7-8.) To show a pattern of violations, aside from the alleged violations for which Plaintiff presently files suit, Plaintiff claims that when he was first hired, approximately seven years before the incidents in question took place, he and another officer entered a backyard "through a gate" without a warrant and the officer he was with "used a shovel to uncover part of the yard." (Pl.'s App. at 34.) This evidence alone is insufficient to establish a pattern of conduct indicating that the Chief Cannaday or the City failed to supervise Irving police officers. Plaintiff also claims that "on several occasions" he "heard Lieutenants tell officers that they did not care if they had a legal right to search a car . . . the department would deal with the search issues later." (Pl.'s App. at 34.) These unspecific assertions are also insufficient to establish municipal liability. Plaintiff fails to provide specific instances of misconduct, and Plaintiff fails to provide evidence that this alleged practice was generally known or should have been generally known by the administrative officers in the Irving Police Department or by anyone else in authority in the City government.
Plaintiff next alleges that Chief Cannaday failed to train members of the City's Police Department by failing to instruct the officers in the proper use of the relevant statute. (Pl.'s Resp. at 36.) With regard to this allegation, Plaintiff provides no evidence to show a pattern of conduct reflecting a failure to train. In fact, Plaintiff provides no evidence whatsoever that the City or Chief Cannaday failed to train its officers. Plaintiff makes only vague and conclusory statements accusing the City and Chief Cannaday of such conduct. However, these conclusory statements are not competent summary judgment evidence.
Because Plaintiff cannot show any pattern of conduct demonstrating a policy, Plaintiff can only establish municipal liability by proving that the alleged violations he suffered were the "highly predictable" consequences of the failure to supervise, and that the failure to supervise represented the "moving force" behind the violations he claims to have suffered. However, Plaintiff does not even argue that an illegal search of his home was the "highly predictable" consequence of Chief Cannaday's failure to supervise or that Chief Cannaday's failure to supervise was the "moving force" behind the search. And Although Plaintiff does contend that Chief Cannaday's mere presence at Captain Jolley's order for Seibert's detention was the "functional equivalent of [Cannaday's] ordering [the Plaintiff's] arrest" (Pl.'s App. at 30), he submits only unsubstantiated assertions in support of this contention. As such, the Court cannot conclude that the Chief's silence was the "moving force" behind Plaintiff's arrest. While Chief Cannaday's silent presence might demonstrate an indifference to the decision to arrest Plaintiff, nothing indicates to the Court that such indifference was deliberate, as required for a finding of municipal liability. Thus, Plaintiff's allegations will not support a claim of municipal liability, and the City is entitled to summary judgment.
B. Defendant Cannaday
Plaintiff also seeks recovery against Chief Cannaday individually under § 1983 and state law. As a prerequisite to recovery under § 1983, a plaintiff "must identify defendants who were either personally involved in the constitutional violation or whose acts are causally connected to the constitutional violation alleged." Roberts, 397 F.3d at 291-92 (quoting Woods v. Edwards, 51 F.3d 577, 583 (5th Cir. 1995)).
Chief Cannaday was not personally involved in the alleged constitutional violations. Plaintiff does not assert that Chief Cannaday was present at his arrest or at the search of his home; Plaintiff does not dispute that Chief Cannaday did not expressly order his arrest or the search of his home (Irving Defs.' App. at 194, 196-97; see Pl.'s App. at 30); and Plaintiff does not have any competent evidence suggesting that Chief Cannaday conspired with Clark to have him arrested. ( See Irving Defs.' App. at 198-99.) Although Plaintiff asserts in his Affidavit that "Officer Cerami told me at the scene that he was ordered by the chief to arrest me" (Pl.'s App. at 21), Plaintiff concedes in his deposition that Officer Cerami did not tell him to which chief he was referring. (Irving Defs.' App. at 194.) Plaintiff simply assumed Officer Cerami referred to Chief Cannaday. Id. Hence, as mentioned above, Plaintiff only contends that Chief Cannaday was present when Captain Jolley ordered that he be detained, and that this was the "functional equivalent of [his] ordering [Plaintiff's] arrest." (Pl.'s App at 30.) Because Chief Cannaday was not personally involved, the Court must determine whether Chief Cannaday's act or failure to act is "causally connected" to the alleged violations Plaintiff endured.
Like municipalities, supervisory officials cannot be held vicariously liable for the actions of their subordinates under § 1983. Roberts, 397 F.3d at 292. The applicable standard for establishing the liability of supervisory officials parallels the standard for municipal liability such that a plaintiff must show: (1) the supervisor failed to train or supervise the officer; (2) that such failure to train or supervise amounted to deliberate indifference; and (3) that a causal connection existed between the failure to train or supervise and the violation of the plaintiff's rights. Id. at 292-293 (citing Doe v. Taylor Indep. Sch. Dist., 15 F.3d 443, 452-54 nn. 7-8 (5th Cir. 1994)).
As demonstrated by the above discussion of municipal liability, supra pp. 7-8, Plaintiff cannot demonstrate that Chief Cannaday failed to train the City's officers or that Chief Cannaday failed to supervise with deliberate indifference. Accordingly, Plaintiff's § 1983 claims against Chief Cannaday cannot survive summary judgment.
With regard to Plaintiff's state law claims against Chief Cannaday, Chief Cannaday asserts official immunity. Since official immunity is an affirmative defense, a defendant must establish all elements of the defense. City of Lancaster v. Chambers, 883 S.W.2d 650, 653 (Tex. 1994). "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.
To satisfy the first and third element of the defense, Chief Cannaday asserts that the he was performing discretionary duties within the scope of his authority. (Irving Defs.' App at 228.) "An official acts within the scope of [his] authority if [he] is discharging the duties generally assigned to [him]." Chambers, 883 S.W.2d at 658. Here, Chief Cannaday acted as a supervisor, keeping aware of the developing situation involving Plaintiff but leaving the tactical decisions and orders to other supervisory police officers. (Irving Defs.' App at 226.) Thus, Chief Cannaday engaged in discretionary duties within the scope of his authority.
The Court must next determine whether Chief Cannaday acted in good faith. The "good faith" standard established by Texas law "is derived substantially from the test that has emerged under federal immunity law for claims of qualified immunity." Chambers, 883 S.W.2d at 656. The good-faith standard focuses on the objective legal reasonableness of the officer's conduct. See id. at 656-57. Officers are presumed to have acted in good faith if they are able to show that a reasonably prudent officer in the same or similar circumstances could have believed that the conduct in question was justified. Id. To rebut this presumption of good faith, "the plaintiff must show that no reasonable person in the defendant's position could have thought the facts were such that they justified defendant's acts." See id. at 657.
The test for claims of qualified immunity is discussed in detail infra pp. 12-13.
Chief Cannaday asserts that he acted reasonably by leaving the authority to make orders regarding Plaintiff with other supervisory police personnel who had more direct knowledge of the situation. ( See Irving Defs.' App at 226, 228.) The Court finds this position tenable, and Plaintiff has not argued that such a delegation of authority was objectively unreasonable. Therefore, the Court concludes that Chief Cannaday is entitled to official immunity from Plaintiff's state law claims.
C. Defendant Clark
Plaintiff also alleges that Defendant Clark violated § 1983 and state common law by contributing to his arrest and the search of his home. Clark responds to these claims by asserting the defense of qualified immunity.
Defendant Clark asserts that "Plaintiff alleges that the individual Defendants, including Clark, under color of law, unlawfully searched his residence." (Def. Clark's Br. in Supp. of Mot. Summ. J. at 1.) In his Complaint, Plaintiff generally seeks damages against the Individual Defendants "for violation of his constitutional rights under color of law." (Compl. at 6.) However, Plaintiff does not appear to allege that Clark was responsible for the search of his home. Plaintiff's Complaint states that "Cannaday, Sheffer, and Henderson caused the illegal search of the Plaintiff's home." (Compl. at 7.) Nonetheless, Defendant Clark, in an abundance of caution, has moved for summary judgment on Plaintiff § 1983 illegal search claim. To the extent that Plaintiff asserts a § 1983 illegal search claim against Clark, the Court will address such claim.
The defense of 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." Pfannsteil v. City of Marion, 918 F.2d 1178, 1183 (5th Cir. 1990). "Whether a defendant asserting qualified immunity may be personally liable turns on the objective legal reasonableness of the defendant's actions assessed in light of clearly established law." Id. When a plaintiff invokes a clearly established right, "the appropriate inquiry is whether the contours of the right are sufficiently clear that a reasonable official would understand that what he is doing violates the right." Id. "If reasonable public officials could differ on the lawfulness of the defendant's actions, the defendant is entitled to qualified immunity." Id.
The first step of the qualified immunity analysis is to ascertain whether the plaintiff has alleged a constitutional violation. Saucier v. Katz, 533 U.S. 194, 201 (2001); Porter v. Ascension Parish School Bd., 393 F.3d 608, 613-14 (5th Cir. 2004). If the plaintiff has established a constitutional violation, the court must then determine whether the constitutional right was clearly established at the time the alleged challenged conduct occurred. Anderson v. Creighton, 483 U.S. 635, 640 (1987); Porter, 393 F.3d at 614. Finally, the court must determine whether the defendant's conduct was objectively reasonable. Siegert v. Gilley, 500 U.S. 226, 231-2 (1991); Porter, 393 F.3d at 614.
The Court must review the evidence in the light most favorable to the plaintiff. Pfannsteil, 918 F.2d at 1183. The plaintiff has the burden of coming forward with summary judgment evidence sufficient to create a genuine issue as to whether the defendant's conduct was objectively unreasonable in light of clearly established law. See id.
Defendant Clark does not challenge the legal sufficiency of Plaintiff's complaint and thus concedes that he has alleged deprivation of actual constitutional rights that were clearly established at the time of the events giving rise to Plaintiff's claims. Thus, the issue before the Court is whether Clark's conduct was objectively reasonable.
Clark contends that his actions were objectively reasonable in light of an "official duty to report his good faith belief that Plaintiff intended to harm himself or others based upon the April 10, 2001 e-mail and his phone conversation with Plaintiff on April 12, 2001." However, viewing the facts in the light most favorable to Plaintiff, Clark's conduct was not objectively reasonable because Clark did not have an official duty to create and relay lies about Plaintiff.
According to Plaintiff, upon receiving Plaintiff's e-mail two days after Plaintiff sent it, Clark forwarded the e-mail and a false claim that Plaintiff had previously attempted suicide to the Irving Police Department. Clark also related to the Irving Police Department that he (Clark) had previously received an e-mail from Plaintiff stating that Plaintiff hated cops and blamed them for his problems. This led the Irving Police Department to believe Plaintiff was a danger to them, which explains why Drumm approached Plaintiff with his gun drawn. Additionally, Plaintiff asserts that Clark falsely claimed he had a phone conversation with Plaintiff that led Clark to believe Plaintiff was suicidal. Plaintiff asserts that in the phone conversation he had with Clark on the day of the arrest, they discussed meeting for coffee, and when Clark asked Plaintiff how he was doing, Plaintiff responded that he was "fine." Plaintiff also alleges that he told Clark he would be able to meet with him on April 18, 2001. Hence, Clark could not have reasonably developed a "good faith" belief that Plaintiff intended to harm himself or others. Accordingly, Clark is not entitled to summary judgment based on qualified immunity.
Clark also asserts, however, that he cannot be held liable under § 1983 because Plaintiff has failed to set forth facts which show that Clark participated in Plaintiff's arrest or illegal search. Again, to be liable under § 1983, a defendant must have caused or been personally involved in the constitutional violation alleged. Roberts, 397 F.3d at 291-92 (quoting Woods v. Edwards, 51 F.3d 577, 583 (5th Cir. 1995)). The requisite causal connection is established if the defendant set in motion a series of events that would forseeably cause others to deprive the plaintiff of constitutional rights. Morris v. Dearborne, 181 F.3d 657, 672 (5th Cir. 1999). Although when "`facts supporting an arrest are placed before an independent intermediary . . ., the intermediary's decision breaks the chain of causation,' . . . claims may be maintained if the plaintiff affirmatively shows that `the deliberations of that intermediary were in some way tainted by the actions of the defendant.'" Shields v. Twiss, 389 F.3d 142, 150 (5th Cir. 2004) (quoting Taylor v. Gregg, 36 F.3d 453, 456-57 (5th Cir. 1994)).
Clark allegedly created false evidence that Plaintiff was a danger to himself and others, and then presented this evidence to the Irving Police Department, thereby tainting the decision to arrest Plaintiff. See Morris, 181 F.3d at 673. Thus, the Court concludes that there is a genuine issue of material fact as to whether Clark's actions caused the arrest of Plaintiff. As such, Clark is not entitled to summary judgment with regard to Plaintiff's claim of false arrest under § 1983.
With regard to Plaintiff's illegal search claim, however, the Court concludes that Plaintiff cannot establish the requisite casual connection. There is no evidence from which the Court can infer that Clark could have forseen that based on his communications to the Irving Police Department, officers would conduct an illegal search of Plaintiff's home. Although Henderson and Sheffer would not have been present at Plaintiff's residence "but for" Clark's representations, the "facts" supporting their decision to enter Plaintiff's residence without a warrant were not provided by Clark. Rather, according to Plaintiff, the Irving Police independently manufactured the existence of an exigent circumstance. (Pl.'s App. at 32-33.) Therefore, Clark may not be held liable for the illegal search of Plaintiff's home. For the same reasons, Clark may not be held liable for Plaintiff's state law claim of trespass.
Plaintiff's remaining state law claims against Clark include false arrest, false imprisonment, assault and battery. Clark does not explicitly address or even acknowledge Plaintiff state law claims of false arrest and false imprisonment. And although Clark acknowledges the claims of assault and battery, Clark fails to set forth any specific arguments regarding these claims. He simply asserts that these claims should be dismissed on the basis of qualified immunity. (Def. Clark's Br. in Supp. of Summ. J. Mot. at 9.) However, under Texas law, qualified immunity does not preclude state claims. Rather, to appropriately defend against Plaintiff's state law claims, Clark should have moved for summary judgment based on the affirmative defense of official immunity. See Chambers, 883 S.W.2d at 653, 656-68. Clark failed to do so. Moreover, even if Clark had asserted official immunity, Plaintiff's version of the events presents genuine issues of material fact that would preclude summary judgment on this basis. See supra p. 14. Therefore, Plaintiff maintains state law claims of assault, battery, false arrest and false imprisonment against Clark.
D. Defendants Henderson and Sheffer
As to Henderson and Sheffer, Plaintiff also asserts § 1983 claims and state law claims. Plaintiff complains that Henderson and Sheffer violated § 1983 and state common law of trespass by conducting an illegal search in his home. Plaintiff does not allege, however, that Henderson or Sheffer participated or in any way caused the alleged false arrest. Therefore, Defendants Henderson and Sheffer are not subject to liability for false arrest under § 1983 or for assault, battery, false arrest, or illegal imprisonment under state law.
In response to Plaintiff's allegations against them, Defendants Henderson and Sheffer first argue that Plaintiff's claims should be dismissed because in his Complaint and deposition, Plaintiff alleges the search occurred on April 11, 2001 when in reality, the search occurred on April 12, 2001. (Irving Defs.' Br. in Supp. of Summ. J. at 20-21.) Ultimately, in his Affidavit, Plaintiff concedes that the search he alleges occurred on April 12, 2001. (Pl.'s App. at 32-33.) However, the Court does not find this change in position to be dispositive of Plaintiff's claims. Defendant was not prejudiced by Plaintiff's initial mistake as Plaintiff's pleading that the search occurred on April 11, 2001, within one day of the actual search, gave Defendants sufficient notice that the search Plaintiff referred to was the one conducted on April 12, 2001.
Next, Henderson and Sheffer assert the defense of qualified immunity as to Plaintiff's § 1983 claim. (Irving Defs.' Br. in Supp. of Summ. J. at 21.) Aside from their challenge to the date of the alleged search, Defendants do not challenge the legal sufficiency of Plaintiff's complaint and thus concede that he has alleged deprivation of an actual constitutional right that was clearly established at the time of the event giving rise to Plaintiff's claims. Thus, to determine whether qualified immunity exists, the Court must determine whether Henderson and Sheffer's conduct was objectively reasonable.
Henderson and Sheffer contend that their entrance onto Plaintiff's property without a warrant was objectively reasonable because exigent circumstances existed which justified their entry. (Irving Defs.' Br. in Supp. of Summ. J. at 21.) Specifically, Henderson and Sheffer contend that they believed a crime was occurring or had taken place at Plaintiff's residence because Plaintiff's backyard gate, garage door, and kitchen door were open despite the fact that Plaintiff was detained at Parkland and he lived alone. Id. at 22. However, Plaintiff maintains that Henderson and Sheffer did not believe a burglary was in place but simply made up that story to cover up the fact that they searched without a warrant. (Pl.'s App. at 33.) To support his theory, Plaintiff provides the undisputed assertion that the Irving Defendants denied for six months that a search had occurred at all. Id. at 31. Plaintiff submits Affidavits of his neighbors which state that it appeared to them that Irving police officers were conducting a search and collecting evidence. Id. at 13-16. This evidence contradicts statements by Officers Henderson and Sheffer that they conducted only a visual search. (Irving Defs.' App. at 213, 220.) Additionally, Plaintiff argues that his cat would have escaped outside if doors to his home had been ajar, but upon his return from Parkland Hospital, his cat remained in the house. (Pl.'s App. at 32-33.) Accordingly, the Court finds that there are genuine issues of material fact surrounding the circumstances of the search. Consequently, the Court cannot determine that the actions of Henderson and Sheffer were objectively reasonable. Their request for summary judgment based on qualified immunity is denied.
To address Plaintiff's state law claim of illegal trespass, Henderson and Sheffer assert official immunity, claiming that they were performing discretionary acts in good faith while acting in the course and scope of their authority. (Irving Defs.' Br. in Supp. of Summ. J. at 14-15.) However, as the good-faith standard focuses on the objective legal reasonableness of the officers' conduct, the Court must also deny Henderson and Sheffer's request for summary judgment based on official immunity. Accordingly, Plaintiff maintains both § 1983 claims and state law claims for trespass against Henderson and Sheffer.
E. Punitive Damages
Plaintiff additionally seeks punitive damages against the Individual Defendants. To recover punitive damages against a police officer, a plaintiff must establish that he acted willfully, intentionally, or with a reckless and callous indifference to his civil rights. Young v. City of New Orleans, 751 F.2d 794, 799-800 (5th Cir. 1985).
Irving Defendants argue that Plaintiff cannot recover punitive damages as a matter of law because the Irving Defendants have "complied with clearly established law and did not deprive the Plaintiff of any of his legally protected rights." (Irving Defs.' Br. in Supp. of Summ. J. at 27-28.) Alternatively, they argue that Plaintiff provides no evidence that they acted willfully, intentionally or with a reckless and callous indifference to Plaintiff's civil rights. Id. at 28.
As the Court has determined that Chief Cannaday is not in violation of the law, Plaintiff may not recover punitive damages against Chief Cannaday. However, as to the remaining Individual Defendants, fact issues exist as to whether they deprived Plaintiff of his rights. Additionally, fact issues exist on the issue of whether these individual defendants acted willfully, intentionally, or with a reckless and callous indifference to Plaintiff's civil rights. Therefore, Plaintiff is not precluded from seeking punitive damages from the Individual Defendants, excluding Chief Cannaday.
IV. Irving Defendants' Objections
The Irving Defendants object to several portions of the Affidavits submitted in support of Plaintiff's Response to the motions for summary judgment. Specifically, they object to portions of the Affidavits of Kelly Hintenmeyer, Brigitte Seibert, Craig Wasilchak, Gary Hulslander, Diane Hulslander, and Sean Seibert. Because the Court does not rely on the Affidavits of Kelly Hintenmeyer, Brigitte Seibert, or Craig Wasilchak in its conclusion of the summary judgment motions, the Court DENIES the objections to these affidavits as MOOT.
Irving Defendants argue that the statements made in the Affidavits of Gary Hulslander and Diane Hulslander are unsupported by the facts and contain hearsay. (Irving Defs.' Objections at 7-8.) As the Affidavits of Gary Hulslander and Diane Hulslander are virtually identical, the Court addresses them together.
Irving Defendants first object to the statement by both Hulslanders that "[d]uring the week of April 12th, 2001 Cathy Minks, who lives across the street from Plaintiff came to our house to inform [us] that two Irving Officers were inside the Plaintiff's house." (Pl.'s App. at 13, 15.) The Court does not find these statements objectionable because they are not offered for the truth. Instead, they are offered to explain why the Hulslanders left their home to observe Plaintiff's home. Irving Defendants next object to the statement by both Hulslanders that
I did not see them turn on any lights in the house, but there were some lights on. I saw numerous flashes, which I believed were from a camera with a flash attachment taking photographs. The kitchen light was on and I could clearly see the two officers in the kitchen. It appeared to me that they were conducting a search and were collecting evidence.
(Pl.'s App. at 13-16.) Here, the Hulslanders properly offer opinions based on their own personal observations. Therefore, Defendants objections to these statements are overruled.
The other statements of the Hulslanders to which the Irving Defendants object are not relied upon by the Court. Accordingly, the Court DENIES the objections to these statements as MOOT.
Irving Defendants object to eight pages worth of statements from Plaintiff's Affidavit. Irving Defendants globally argue that Seibert's statements are "speculative, conjectural, and conclusory." (Irving Defs.' Objections at 16.) They also argue that Seibert's statements call for expert opinions, contradict Seibert's deposition testimony, and contain inadmissable hearsay. Id. As the Court has relied on only a portion of Seibert's Affidavit to determine the summary judgment motions, the Court now lists and examines each statement relied upon to determine whether its content is objectionable.
1. "This is a lie. I never told Andrew Clark on April 12, 2001 or at any other time that I was going to kill myself . . . This is also a lie [referring to Clark's prior intervention]." (Pl.'s App. at 18.)
Plaintiff asserts that Clark's accounts of the April 12, 2001 phone conversation and of a prior suicide intervention are lies. The Court does not find this statement objectionable because Seibert makes this assertion based on personal knowledge of his own communications with Clark.
2. "The defendants further state that `I hate cops,' how could this be true when Officer Florence of the Irving Police Department would have daily contact would have daily contact with on a personal level and we would go out at least once a week."
Here, Plaintiff testifies to his own personal feelings and activities. Because none of the Irving Defendants' objections apply to this statement, the objections are overruled as to this statement.
3. "I have never made a statement either in writing or verbally to Andrew Clark or to anyone else that I was considering killing or harming myself or others . . . I was never in Clark's presence at or near the time my former wife announced to me that she desired a divorce on Christmas Eve in 1996. I never handled a firearm of any type in Clark's presence . . ." (Pl.'s App. at 23.)
The Court does not find this statement objectionable because Seibert has personal knowledge of whether or not he has stated intentions to kill or harm himself or others. He also has personal knowledge of whether or not he was in Clark's presence near the time he learned that his wife wanted a divorce and whether or not he handled a firearm in Clark's presence.
4. "[In April] I then called my lawyer, Bob Gorsky, to inform him [of the search]. Gorsky then spoke with an Irving lawyer. This lawyer claimed that no one from the department had entered my house. During a civil service hearing in November 2001, I was informed through Gorsky that Irving's legal advisor said Irving Officers Sheffer and Henderson had indeed entered my house without a warrant." (Pl.'s App. at 31.)
The Court does not find this statement objectionable because it is not being offered to prove the truth of the matter, that the search actually occurred. Irving Defendants acknowledge that the search occurred. Rather, this statement is being offered to show that the Irving Defendants, through their lawyer, denied that the search occurred for six months. Irving Defendants do not dispute that this denial occurred.
5. "Henderson falsely claimed my gate was open . . . These claims are not truthful or accurate . . . I have a house cat that is not allowed to go outside . . . If this were true, my cat would have run outside, instead when I returned she was still in the house . . . Henderson and Sheffer have invented a justification for entering my home." (Pl.'s App. at 32-33.)
The Court does not find these statements objectionable. Seibert's conclusion that Henderson and Sheffer are lying about their reasons for entering Seibert's home is supported by factual allegations regarding the Irving Defendants' six-month denial that the search occurred and the behavior of Seibert's cat as well as the contradictions between the statements of the Hulslanders and Officers Henderson and Sheffer. Seibert's claims that his cat would have run outside if his doors were open and that his cat remained in his house when he returned are unobjectionable because Seibert has personal knowledge of his cat's whereabouts upon his return home and his opinion that his cat would have run outside if doors were left open is rationally based on his perceptions of the cat, not on any scientific, technical or other specialized knowledge.
Furthermore, none of these statements contradict Seibert's deposition testimony. Irving Defendants identify only one contradiction between Seibert's deposition testimony and his Affidavit: in Seibert's deposition and in his Complaint, he identified the date of the search as April 11th; in his Affidavit, he identified the date of the search as April 12th. Irving Defendants claim that Plaintiff "seeks to create a fact issue concerning the date on which his residence was purportedly searched . . . by materially changing and contradicting the judicial admissions contained in his pleadings as well as his prior unequivocal deposition testimony that said search occurred on April 11, 2001." (Irving Defs.' Supplemental Br. in Supp. of Objections at 3.) As explained above, the Court does not view this change in position as material. Plaintiff merely concedes that his earlier belief that the search occurred on April 11, 2001 was incorrect. His assertion that the search occurred on April 12, 2001 does not create a fact issue; it creates an undisputed fact. For these reasons, Irving Defendants' objections to the above-listed statements are DENIED. Additionally, Irving Defendants' objections to the portions of Seibert's Affidavit which the Court has not relied on are DENIED as MOOT.
V. Conclusion
For the foregoing reasons, the Court GRANTS IN PART and DENIES IN PART Clark's Motion and GRANTS IN PART and DENIES IN PART the Irving Defendants' Motion. As a result, Plaintiff maintains claims against Defendant Clark for false arrest in violation of § 1983 and for assault, battery, false arrest and false imprisonment in violation of state law. Plaintiff also maintains claims against Defendants Henderson and Sheffer for illegal search in violation of § 1983 and for trespass in violation of state law. All other claims against Clark, Henderson, and Sheffer are dismissed as a matter of law, and all of Plaintiff's claims against the City of Irving and Chief Cannaday are dismissed as a matter of law.
The Court also DENIES AS MOOT IN PART and DENIES ON MERITS IN PART the Irving Defendants' Objections.