Opinion
NO. 3-01-CV-0920-BD (R)
April 19, 2002
MEMORANDUM OPINION AND ORDER
Defendants Michael Joseph Mata, Michael Bricker, and Stephen Dale Baugh have filed a motion for summary judgment in this pro se prisoner civil rights case. For the reasons stated herein, the motion is granted.
I.
On the evening of December 9, 2000, seven Dallas police officers assigned to the "nuisance" or "enforcement" squad of the Southeast Operations Division were patrolling a neighborhood where a high volume of drug activity had been reported. (Def. App. at 1-2, 4-5, 7-8). The officers observed a man, later identified as Plaintiff Arthur R. Tucker, standing in front of a nightclub in the 2700 block of Silkwood Street. Plaintiff was holding what appeared to be a glass bottle of liquor. As the officers got out of their patrol cars, they smelled a strong odor of marijuana coming from the area where plaintiff was standing. Plaintiff retreated into the nightclub when approached by the officers. He had one hand near the waistband of his pants and a glass bottle in the other hand. Not knowing whether plaintiff was reaching for a weapon, Officer Bricker grabbed him by the arm. Plaintiff pulled away. Another officer got plaintiff in a "bear hug" and escorted him out of the club. (Id. at 2, 5, 8).
At some point during his encounter with the police, plaintiff pulled a loaded .45 caliber automatic pistol from his pants. The officers wrestled plaintiff to the ground and got him to drop the weapon. Plaintiff was then handcuffed and searched. (Id.). The police found nine baggies of marijuana in plaintiff's jacket pocket. (Id. at 14). He was arrested and charged with unlawful possession of a firearm by a convicted felon and possession of marijuana. (Id. at 2, 5, 8). Those charges are still pending.
On May 16, 2001, plaintiff sued three officers involved in his arrest for civil rights violations under 42 U.S.C. § 1983. His pro se complaint alleges that "[w]ithout warning, I was grabbed from behind, slammed on the left side of my head and face and repeatedly struck in my face and kicked in my sides by 5 white Dallas Police Officers." (Plf. Compl. at 4). Plaintiff further contends that this beating was racially motivated. Although plaintiff generally accuses all five officers of using excessive force, only Officers Mata, Bricker, and Baugh are named as defendants in the case. These officers now move for summary judgment. The motion has been briefed by the parties and is ripe for determination.
Plaintiff states that he is "unable to identify exactly who was kicking and who was hitting me, but I am absolutely sure that there was 4 white males and 1 white female standing over me, once they stopped kicking and hitting me." (Plf. Compl. at 4).
Plaintiff's response to defendants' motion for summary judgment barely mentions the use of excessive force by defendant. Instead, plaintiff argues that he was illegally detained, searched, and arrested without probable cause. Plaintiff also accuses defendants of "giving falsified statements concerning the true events that transpired on December 9, 2000" and conspiring to cover-up their wrongful conduct. (Plf. Resp. at 2). As defendants correctly note, plaintiff's complaint does not allege any claims for false arrest or illegal detention. Nor can plaintiff maintain a civil rights action based on these allegations until a state court or federal habeas court determines that the terms of his confinement are in fact invalid. See Heck v. Humphrey, 512 U.S. 477, 487, 114 S.Ct. 2364, 2372, 129 L.Ed.2d 383 (1994); Stephenson v. Reno, 28 F.3d 26, 27 (5th Cir. 1994).
II.
Summary judgment is proper when there is no genuine issue as to any material fact and the movant is entitled to judgment as a matter of law. FED. R. CIV. P. 56(c); Celotex v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 2552, 91 L.Ed.2d 265 (1986). A dispute is "genuine" if the issue could be resolved in favor of either party. Matsushita Electric Industrial Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 1356. 89 L.Ed.2d 538 (1986); Thurman v. Sears, Roebuck Co., 952 F.2d 128, 131 (5th Cir.), cert. denied, 113 S.Ct. 136 (1992). A fact is "material" if it might reasonably affect the outcome of the case. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986); Matter of Gleasman, 933 F.2d 1277, 1281 (5th Cir. 1991).A movant who does not have the burden of proof at trial must point to the absence of a genuine fact issue. Tubacex, Inc. v. M/V Risan, 45 F.3d 951, 954 (5th Cir. 1995). The burden then shifts to the non-movant to show that summary judgment is not proper. Duckett v. City of Cedar Park, 950 F.2d 272, 276 (5th Cir. 1992). The parties may satisfy their respective burdens by tendering depositions, affidavits, and other competent evidence. Topalian v. Ehrman, 954 F.2d 1125, 1131 (5th Cir.), cert. denied, 113 S.Ct. 82 (1992). A pro se plaintiff's verified complaint and sworn interrogatory answers can be considered as summary judgment evidence to the extent that such pleadings comport with the requirements of Rule 56(e). See King v. Dogan, 31 F.3d 344, 346 (5th Cir. 1994). All evidence must be viewed in the light most favorable to the party opposing the motion. Rosado v. Deters, 5 F.3d 119, 122 (5th Cir. 1993).
Rule 56(e) provides, in relevant part:
Supporting and opposing affidavits shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein.
FED. R. Civ. P. 56(e).
III.
Plaintiff alleges that defendants used excessive force against him in violation of his constitutional rights. This claim must be analyzed under the "reasonableness" standard of the Fourth Amendment. Graham v. Connor, 490 U.S. 386, 395, 109 S.Ct. 1865, 1871, 104 L.Ed.2d 443 (1989): Ikerd v. Blair, 101 F.3d 430, 433 (5th Cir. 1996). The Fifth Circuit has adopted a three-part test in such cases. A plaintiff must show that: (1) he suffered some injury; (2) resulting from force that was clearly excessive to the need for force; and (3) the force used was objectively unreasonable. See Heitschmidt v. City of Houston, 161 F.3d 834, 838 (5th Cir. 1998). The Court must view the totality of circumstances from the standpoint of a reasonable officer on the scene, paying particular attention to "whether the suspect pose[d] an immediate threat to the safety of the officers or others." Stroik v. Ponseti, 35 F.3d 155, 157-58 (5th Cir. 1994), cert. denied, 115 S.Ct. 1692 (1995), citing Graham, 109 S.Ct. at 1872.
Officers Mata, Bricker, and Baugh have submitted affidavits in support of their motion for summary judgment. All three defendants encountered plaintiff standing outside a nightclub in a neighborhood known for illegal drug activity. As they exited their patrol cars, defendants smelled a strong order of marijuana coming from the area where plaintiff was standing. Defendants observed plaintiff reach into the waistband of his pants and pull out a gun. Another officer grabbed plaintiff by the midsection in a "bear hug." After plaintiff dropped the gun, several officers wrestled him to the ground. Officer Mata recovered the gun and discovered that it was a loaded .45 caliber automatic derringer. All three defendants deny slamming plaintiff on the left side of his head or face, hitting him in the face, or kicking him in the side. Nor did the defendants observe any injuries to plaintiff. According to the officers, all force used against plaintiff "was reasonable and necessary to eliminate the threat of death or serious bodily injury that Plaintiff posed to me and others." (Def. App. at 2-3, 5-6, 8-9).
Plaintiff has not submitted any summary judgment evidence to controvert these facts. However, his verified pro se complaint alleges that he was "slammed on the left side of my head and face and repeatedly struck in my face and kicked in my sides by 5 white Dallas Police Officers." (Plf. Compl. at 4) Although plaintiff's version of the incident must be taken as true for summary judgment purposes, the fact that he may have been slammed to the ground and kicked by unidentified officers does not raise a genuine issue of material fact for trial. The Court initially observes that plaintiff does not allege, much less prove, that he was assaulted by Ofticers Mata, Bricker, and Baugh. Thus, there is no evidence to controvert defendants' sworn testimony that they "never slammed Plaintiff on the left side of his head or face, hit him in the face, or kicked him in the sides . . ." (Def. App. at 3, 6, 8). Moreover, plaintiff does not dispute that he pulled a loaded gun from his waistband when he was approached by the officers. Confronted with this dangerous situation, the defendants would have been justified in wrestling plaintiff to the ground and using whatever force was necessary to protect themselves and others. See Cross v. City of Grand Prairie, 2000 WL 233295 at *6 (N.D. Tex. Feb. 28, 2000) (use of pepper spray and baton justified when suspect pulled gun on officers).
The only evidence submitted by plaintiff is: (1) a handwritten document listing the names of five police officers who testified at his suppression hearing; (2) a pay stub from the Silverleaf Resorts; (3) correspondence from the Internal Affairs Division of the Dallas Police Department; and (4) various court documents related to his criminal case. Defendants argue that these documents are not properly authenticated and contain hearsay. (Def. Reply at 1-2). Even if the Court considers this evidence, plaintiff has failed to create a genuine issue of material fact for trial. Accordingly. defendants' objections are overruled as moot.
In response to a Spears questionnaire, plaintiff states that "neither during, or before this assault, did he at anytime offer any type of resistence, what-so-ever!" (Spears Quest. #2). However, this answer is not verified or even signed by plaintiff and cannot be considered as summary judgment evidence.
Plaintiff was allowed to conduct limited discovery in order to respond to defendants' motion for summary judgment. Despite this opportunity, he never asked Officers Mata, Bricker, and Baugh about the statements contained in their affidavits.
CONCLUSION
The Court concludes that the summary judgment evidence, viewed in the light most favorable to plaintiff, establishes that the level of force used by defendants was neither clearly excessive nor objectively unreasonable under the circumstances. Accordingly, defendants' motion for summary judgment is granted.