Opinion
No. 3:03-CV-0153-P.
March 30, 2004
MEMORANDUM OPINION AND ORDER
Now before the Court is Defendants' Motion for Summary Judgment, filed July 31, 2003. After careful consideration of the Parties' briefing, the evidence, and the applicable law, the Court hereby GRANTS Defendants' Motion for Summary Judgment.
Plaintiff filed her Response to Defendants' Motion for Summary Judgment on August 27, 2003, and Defendants filed their Reply on September 9, 2003.
BACKGROUND
Irma Barron or Irma Morante ("Irma"), a 15 year old chronic runaway, ran away from her home in Irving, Texas on June 22, 2001. (Pl.'s Resp. App. at 41, 51.) Her biological mother, Catherine Barron, filed a runaway report regarding her daughter with the Irving Police Department. Id. at 41. On June 27, 2001, Catherine Barron received a phone call informing her that Irma had been taken to the Letot Center. Id. The Letot Center is a non-secure, emergency shelter for runaway minors operated by the Dallas County Juvenile Department. (Defs.' Mot. Summ. J. App. at 90.) That evening, Irma attempted to run away from the Letot Center. (Pl.'s Resp. App. at 47.)
The next morning Irma telephoned her mother to tell her that she had been informed that she would be staying at the Letot Center for a week. Id. at 41. After the telephone call, Hilda Sierra, a Transportation Officer with the Letot Center, drove Irma in a van operated by the Letot Center to the clinic for a medical screening. Id. at 42. Since Sierra had been informed that Irma had attempted to run away the night before, she spoke with Irma at length, and Irma did not give Sierra any indication that she would try to run away again. Id. Irma spent approximately 15 to 20 minutes with the nurse, and then Sierra and Irma got into the van to head back to the Letot Center. Id. On their way back, Sierra noticed that Irma had unbuckled her seat belt and was moving around in the back of the van. Id. Sierra instructed Irma to sit down and put on her seat belt. Id. Irma obeyed. Id.
However, just as the van approached the Letot Center, Irma unbuckled her seat belt, unlocked the van door, and jumped out of the van. Id. at 43. Sierra explains that since she was only driving 15 mph, she was able to stop right next to Irma. Id. While Sierra believes Irma attempted to land on her feet, she landed on her head instead, and sustained severe trauma to the back of her head. Id. Sierra yelled at one man to call 911 and at another woman to run across the street to the Letot Center to get assistance. Id.
Sam Quattrochi, the Superintendent at the Letot Center, was called to the scene, and found Irma on her back with her eyes partially closed and a very faint pulse. Id. The paramedics arrived within minutes and attempted to stabilize Irma. Id. at 42-43. Despite their efforts, Irma was pronounced dead at Parkland Hospital on June 28, 2001. Id. at 43.
Catherine Barron filed suit on January 23, 2003 alleging claims of wrongful death pursuant to the Texas Wrongful Death Act, negligence, and state-created danger pursuant to 42 U.S.C. § 1983 against Defendants. (Pl.'s Compl. at 4-10.) The Court will address each of Plaintiff's claims and Defendants' affirmative defenses in turn.
DEFENDANTS' MOTION FOR SUMMARY JUDGMENT
I. 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. 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. 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. 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. Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). The party defending the motion for summary judgment cannot defeat the motion unless she 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. 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. 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. Douglass v. United Servs. Auto. Ass'n, 79 F.3d 1415, 1429 (5th Cir. 1996) (en banc).
If the nonmoving party fails to make a showing sufficient to establish the existence of an element essential to his case, and on which he bears the burden of proof at trial, summary judgment is mandatory. Celotex, 477 U.S. at 322-24; Washington v. Armstrong World Indus., Inc., 839 F.2d 1121, 1122 (5th Cir. 1988). A motion for summary judgment cannot be granted simply because there is no opposition, even if the failure to oppose it violates a local rule. Hibernia Nat'l Bank v. Adminstracion Central Sociedad Anonima, 776 F.3d 1277, 1279 (5th Cir. 1985). However, when the nonmovant fails to provide response identifying the disputed issues of fact, the Court is entitled to accept the movant's description of the undisputed facts as prima facie evidence of its entitlement to judgment. Eversly v. MBank Dallas, 843 F.2d 172, 173-174 (5th Cir. 1988); Nordar Holdings, Inc. v. Western Sec. (USA) Ltd., No. 3:96-CV-0427-H, 1996 WL 739019, *2 (N.D. Tex. Dec. 18, 1996).
Finally, the Court has no duty to search the record for triable issues. Ragas v. Tennessee 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.
II. QUALIFIED IMMUNITY.
Defendants argue that Plaintiff's state-created danger claim under 42 U.S.C. § 1983 against Quattrochi and Sierra is barred by the doctrine of qualified immunity. (Defs.' Mot. Summ. J. at 5.)
Qualified immunity is an affirmative defense, and it must be raised by the defendant. Bazan v. Hidalgo County, 246 F.3d 481, 489 (5th Cir. 2001). To call it an affirmative defense, however, is a bit misleading. It is not merely a defense to liability; rather, it provides immunity from suit. Mitchell v. Forsyth, 472 U.S. 511, 526 (1985). Qualified immunity protects state officials from suit when it appears that a reasonable official, in light of clearly established law and the information known to the defendant at the time she acted, could have believed that the defendant's actions were lawful. Anderson v. Creighton, 483 U.S. 635, 641 (1987). The focus of a court's inquiry into qualified immunity is on the so-called "objective legal reasonableness of an official's acts." Harlow v. Fitzgerald, 457 U.S. 800, 819 (1982).
"The qualified immunity analysis is a two-step process." Glenn v. City of Tyler, 242 F.3d 307, 312 (5th Cir. 2001). "The first step is to determine whether the plaintiff has alleged a violation of a clearly established constitutional right." Colston v. Barnhart, 130 F.3d 96, 99 (5th Cir. 1997). "The second step requires the court to determine whether [Defendants'] conduct was objectively reasonable under existing clearly established law." Id. The issue in an objectively reasonable inquiry is "whether a reasonable person would have believed that his [or her] conduct conformed to the constitutional standard in light of the information available . . . and the clearly established law." Goodson v. City of Corpus Christi, 202 F.3d 730, 736 (5th Cir. 2000).
The Court must first decide whether the state-created danger theory is clearly established. In determining whether law was clearly established at the time of the alleged violation, the Fifth Circuit does not rely solely on Supreme Court and Fifth Circuit precedent, but this precedent "will loom largest in [their] inquiries." McClendon v. City of Columbia, 258 F.3d 432, 400 (5th Cir. 2001) ("McClendon I"). The Supreme Court has never addressed the state-created danger theory. Although the Fifth Circuit has addressed this theory, they explained in their most recent opinion that they have "neither adopted nor rejected the state-created danger theory." Priester v. Lowndes County, 354 F.3d 414, 17 (5th Cir. 2004). As Judge Parker explained, "if the [Fifth] Circuit never rules on whether this is a viable theory, th[is] Circuit makes it exceedingly difficult for the district courts to rule that the Circuit law in state-created danger cases is `clearly established' for purposes of a qualified immunity analysis." McClendon v. City of Columbia, 305 F.3d 314, 338 (5th Cir. 2002) ("McClendon II").
"In McClendon II, the en banc [Fifth Circuit] did make clear, however, that at the time of the events in McClendon I [July 1993], a state-created danger theory was not clearly established in this Circuit such as to sustain a § 1983 claim." Morin v. Moore, 309 F.3d 316, 321 (5th Cir. 2002) (citing McClendon II). Furthermore, the Fifth Circuit noted that "the reluctance of this court, in the ten years since Salas was decided, to embrace some version of the state-created danger theory despite numerous opportunities to do so suggests that, regardless of the status of this doctrine in other circuits, a reasonable officer in this circuit would, even today [in 2002], be unclear as to whether there is a right to be free from `state-created danger.'" McClendon, 305 F.3d at 332 n. 12.
The events giving rise to the cause of action before the Court took place in June 2001. Thus, as the Fifth Circuit explained in McClendon II, the right to be free from state-created danger was not clearly established in June 2001. Id. As such, Plaintiff has not alleged the violation of a clearly established right. Even if Plaintiff could allege a violation of the statecreated danger theory, her claim would still not survive summary judgment as she cannot show that Quattrochi and Sierra acted objectively unreasonable.
A defendant acts objectively reasonable if "all reasonable officials similarly situated would have then known that the alleged acts of the defendants violated the United States Constitution." Thompson v. Upshur County, 245 F.3d 447, 460 (5th Cir. 2001). While Plaintiff claims that Quattrochi and Sierra violated policy and law by transporting Irma in a van not adequate to protect juveniles characterized as chronic runaways with only one Letot Center staff member, she fails to cite any authority indicating that these actions would violate the United States Constitution, let alone that all reasonable officials similarly situated would be cognizant of this alleged violation. (Pl.'s Resp. at 6.) Therefore, Quattrochi and Sierra are entitled to qualified immunity for Plaintiff's state-created danger claim.
III. MUNICIPAL LIABILITY.
Defendants further argue that Plaintiff has failed to state an actionable claim of the state-created danger theory under 42 U.S.C. § 1983. (Defs.' Mot. Summ. J. at 2.) Since Quattrochi and Sierra are entitled to qualified immunity, Plaintiff's claim of state-created danger only remains against Defendant Dallas County.
"Local 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. "Municipal liability under 42 U.S.C. § 1983 requires proof of 1) a policymaker; 2) an official policy; 3) and a violation of constitutional rights whose `moving force' is the policy or custom." Rivera v. Houston Indep. Sch. Dist., 349 F.3d 244, 247 (5th Cir. 2003).
Defendants first argue that Plaintiff fails to point to a custom or policy of the Letot Center which caused Irma's death. (Defs.' Mot. Summ. J. at 5.) "An `official policy' for § 1983 purposes may be either a written policy or 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." Lawson, 286 F.3d at 263. In her Response, Plaintiff identifies Dallas County Juvenile Department Policy No 11.6E, which provides that "the juvenile shall be seat-belted in the back seat on the opposite side from the driver and the car doors shall be locked." (Pl.'s Resp. App. at 80-81.) Furthermore, Plaintiff argues that the Letot Center should eliminate the practice of transporting juveniles offsite for medical screenings, or at the very least install child safety locks in the vans used to transport juveniles from the Letot Center. (Pl.'s Resp. at 3.) Accordingly, Plaintiff satisfies the policy element of municipal liability.
Nevertheless, Defendants contend that there is no evidence to establish that their deliberate indifference caused Irma's death. (Defs.' Mot. Summ. J. at 4.) To establish deliberate indifference, Plaintiff must show that the "environment created by the state actors must be dangerous; they must know it is dangerous; and . . . they must have used their authority to create an opportunity that would not otherwise have existed for the third party's crime to occur." Scanlan v. Texas AM University, 343 F.3d 533, 538 (5th Cir. 2003) (quoting Piotrowski v. City of Houston, 237 F.3d 567, 585 (5th Cir. 2001)).
Plaintiff claims that Defendant Dallas County knew of and disregarded an excessive risk to Irma's safety by transporting juveniles characterized as chronic runaways in a van which may be unlocked from the inside. (Pl.'s Resp. at 3.) Since Quattrochi reports that approximately 95% of the residents at the Letot Center are chronic runaways, Plaintiff argues that the Letot Center should either eliminate the need for the students to be screened offsite, or place restraints, safety locks, or increased personnel in the vehicles. (Pl.'s Resp. at 3.)
Furthermore, Plaintiff argues that "it is . . . clearly established that other resident youth had previously fled from the non-secure van during transportation to their medical screening at the Juvenile Detention Center." Id. at 4. However, Plaintiff fails to cite any evidence to support this contention. Regarding this issue, the evidence establishes that while Sierra had transported over 1,000 children, only one other child had ever jumped out of the van. (Pl.'s Resp. App. at 41.) In contrast to the case before the Court, that child jumped out of the van while it was stopped at a red light, not while it was moving. Id. Evidence of one youth jumping out of the van stopped at a red light does not in and of itself prove that Defendant Dallas County was aware of the danger of transporting juveniles characterized as chronic runaways jumping from moving vehicles.
While Plaintiff claims that this event occurred two weeks prior to the incident which led to Irma's death, Plaintiff fails to cite to her Response Appendix to prove this statement. In fact, throughout Plaintiff's Memorandum Brief, she cites to her Appendix a total of one time. Plaintiff's failure to cite to the Appendix throughout their briefing not only caused the Court great inconvenience as it forced the Court to search Plaintiff's Appendix to find the cited facts, but also violates Local Rule 7.2(e). If a party's response is accompanied by an appendix, the party's brief must include citations to each page of the appendix that supports each assertion that the party makes concerning any documentary or non-documentary evidence on which the party relies to oppose the motion. L.R. 7.2(e) Furthermore, in many instances, the cites to the Appendix did not say what Plaintiff purported they said.
Plaintiff also asserts that the timing and the sequence of events preceding Irma's jump from the van put Sierra on notice that Irma intended to flee from the van. (Pl.'s Resp. at 4-5.) Specifically, Plaintiff claims that Irma began moving across the van seat toward the door while Sierra was driving on Harry Hines Boulevard, and when Sierra turned east on Lombardy Street, Irma began pulling on the van door locks. Id. According to Plaintiff, Irma's behavior indicated that she was about to jump out of the van. Id. at 5.
However, these facts do not suggest that Sierra and Defendant Dallas County acted with deliberate indifference toward Irma. At most, it appears that Defendant Dallas County may have acted negligently in transporting juveniles characterized as chronic runaways without additional personnel, restraints, or child safety locks, and Sierra may have acted negligently in continuing to drive once she was aware Irma intended to jump. In the absence of proof of Defendants' deliberate indifference, Plaintiff's claim of state-created danger against Defendant Dallas County will not survive summary judgment.
IV. CONCLUSION.
In conclusion, the Court GRANTS Defendants' Motion for Summary Judgment for Plaintiff's state-created danger claim against Defendants Dallas County, Quattrochi, and Sierra. Since Plaintiff has failed to state an actionable federal claim against Defendants, the Court declines to exercise its supplemental jurisdiction to hear Plaintiff's remaining state claims, and thus, DISMISSES WITHOUT PREJUDICE Plaintiff's state law claims. See Slaughter v. Allstate Ins. Co., 803 F.2d 857, 859 (5th Cir. 1986) (holding "in the absence of a federal claim, a district court may in its discretion, and generally should, dismiss pendent state law claims.")