Opinion
7:00-CV-088-R.
March 30, 2001.
MEMORANDUM OPINION AND ORDER
Came on this day to be considered Defendants' motion for summary judgment and the Court finds and orders as follows:
This is an action brought pursuant to 42 U.S.C. § 1983 by an inmate confined in the Boyd Unit of the Texas Department of Criminal Justice in Teague, Texas. Defendants are officers with the Wichita Falls Police Department Plaintiff states that, on May 25, 1998, Defendants entered his home with a search warrant. Complaint ¶ V. He claims that, after he swallowed some cocaine rocks, Defendants tried to retrieve the drags by choking him and hitting him over the head with pistols. Id. When that failed, Charles alleges that Defendants began beating him with their fist in his testicles and penis, then squeezed and twisted his testicles and penis continuously until he vomited the evidence. Id. Plaintiff claims that the pain from the blows and twisting of his genitals caused him to emit blood, urine and semen and rendered him semi-conscious and unable to walk. Id. He seeks monetary damages in the amount of one million dollars for pain and suffering. Id. Defendants filed their motion for summary judgment on February 28, 2001. Plaintiff has failed to respond.
When police officers are accused of using excessive force during an arrest, the Fourth Amendment guarantee against unreasonable seizure is implicated. Harper v. Harris County, Texas, 21 F.3d 597, 600 (5th Cir. 1994). To state a claim under § 1983 for use of excessive force, 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 in light of the facts and circumstances. Ikerd v. Blair, 101 F.3d 430, 433-34 (5th Cir. 1996); Harper v. Harris County, 21 F.3d 597, 602 (5th Cir. 1994); Knight v. Caldwell, 970 F.2d 1430, 1432 (5th Cir. 1992), cert. denied, 507 U.S. 926, 113 S.Ct. 1298 (1993). The summary judgment evidence before this Court reflects the following:
A warrant was obtained to search Plaintiff's residence at 711 1/2 Bonner Street in Wichita Falls, Texas. Defendants' Appendix to Brief in Support of Motion for Summary Judgment, Exhibits A, B, E, F, G, I, J, K, L, M, N, O, P (hereinafter referenced as "Appendix Exhibits ___."). The warrant was executed on May 25, 1998 by a fourteen-man team from the Wichita Falls Police Department's Drug Taskforce. Defendant's Motion for Summary Judgment p. 2. Defendant Eipper and seven other officers entered Plaintiff's residence at 711 1/2 Bonner Street in Wichita Falls, Texas. Id. Defendant King and five other officers waited outside to provide cover for the perimeter of the property. Id.
The affidavits submitted in support of their motion for summary judgment reflect that, although they were present as members of the team executing the search warrant, neither Officer Eipper nor Officer King made physical contact with Plaintiff during his arrest. Appendix Exhibits A, B, K, L. Officers Eipper and William Haisten witnessed Charles putting a pill bottle to his mouth and attempting to swallow the contents. Appendix Exhibits A, K. Haisten ordered Charles to spit out the substance and Charles complied. Appendix Exhibits A, K Thereafter, Charles was physically taken into custody by Officer Haisten and Officer David Stout. Appendix Exhibits A, E, K. Affidavits reflect that Charles was not beaten with pistols or fists and that his genitals were not twisted or squeezed. Appendix Exhibits A, E. K, L. The evidence further reflects that Charles was not injured, that he made no complaints of injury and that he did not vomit or emit blood, urine or semen. Appendix Exhibits A, B, C, D, E, G, H, I, J, K, L, M, N. 0, P. Three of the witnesses who appear to have been designated by Plaintiff as his own experts, Dr. Kenneth Ryce, Dr. Dan Bolin and Nurse Rose Ingram, have submitted affidavits indicating that Charles did not exhibit any symptoms or evidence of physical injuries consistent with the allegations set forth in his complaint, Appendix Exhibit H, and that there are no records of any such injuries. Appendix Exhibits C, D, H. Based upon this evidence, it is readily apparent that excessive force was not used against Charles at any time during the search of his residence or during his arrest.
Because it is clear from the facts of this case, viewed in a light most favorable to Plaintiff, that Defendants' actions did not give rise to any issue of constitutional magnitude, the Court further finds that Defendants are entitled to qualified immunity from suit. See Gibson v. Rich, 44 F.3d 274, 277 (5th Cir. 1995) (holding government officials are entitled to qualified immunity from suit when performing discretionary functions unless their conduct violated statutory or constitutional rights, clearly established at the time of the alleged incident, of which a reasonable person would have known).
Summary judgment is proper when the pleadings and evidence illustrate that no genuine issue exists as to any material fact and that the movant is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c); Slaughter v. Southern Talc Co., 949 F.2d 167, 170 (5th Cir. 1991). Disputes concerning material facts are genuine if "the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Douglass v. United Servs. Auto. Ass'n, 79 F.3d 1415, 1429 (5th Cir. 1996) (en banc) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 2510 (1986)). Substantive law provides that an issue is "material" if it involves a fact that might affect the outcome of the suit under the governing law. Anderson, 477 U.S. at 248, 106 S.Ct. at 2510; Burgos v. Southwestern Bell Telephone Co., 20 F.3d 633, 635 (5th Cir. 1994).
The nonmovant is not required to respond to the motion until the movant properly supports his motion with competent evidence. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 2553 (1986); Tubacex. Inc. v. M/V Risan, 45 F.3d 951, 954 (5th Cir. 1995). However, once the movant has carried his burden of proof the nonmovant may not sit idly by and wait for trial. Page v. DeLaune, 837 F.2d 233, 239 (5th Cir. 1988). When a movant carries his initial burden, the burden then shifts to the nonmovant to show that the entry of summary judgment is inappropriate. Celotex, 477 U.S. at 322-24, 106 S.Ct at 2552-53; Duckett v. City of Cedar Park, 950 F.2d 272,276 (5th Cir. 1992).
Summary judgment evidence is viewed in the light most favorable to the party opposing the motion. Matsushita Elec. Indus. Co., Ltd., v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 1356 (1986); Rosado v. Deters, 5 F.3d 119, 123 (5th Cir. 1993). In addition, factual controversies are resolved in favor of the nonmovant, but only when both parties have submitted evidence of contradictory facts, thus creating an actual controversy. Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994) (en banc). In the absence of any proof; however, the Court does not assume that the nonmovant could or would prove the necessary facts. Id.
In making its determination on the motion, the Court looks at the full record including the pleadings, depositions, answers to interrogatories, admissions, and affidavits. Fed.R.Civ.P. 56(c); Williams v. Adams, 836 F.2d 958, 961 (5th Cir. 1988). However, "the [Court's] function is not to weigh the evidence and determine the truth of the matter but to determine whether there is a genuine issue for trial." Anderson, 477 U.S. at 249, 106 S.Ct. at 2511. The movant's motion for summary judgment will be granted if he meets his burden and the nonmovant fails to make the requisite showing that a genuine issue exists as to any material fact. Fed.R.Civ.P. 56(c); Campbell v. Sonat Offshore Drilling, Inc., 979 F.2d 1115, 1119 (5th Cir. 1992).
The summary judgment evidence presented in this case establishes that there are no genuine issues of material fact and that Defendants are entitled to summary judgment as a matter of law.
A district court may dismiss a complaint filed by a prisoner proceeding in forma pauperis if it determines that the action is frivolous. 28 U.S.C. § 1915(e)(2)(B)(i). An action is frivolous if it lacks an arguable basis in either law or fact. Neitzke v. Williams, 490 U.S. 319, 325, 109 S.Ct. 1827, 1831-32 (1989); Henson-El v. Rogers, 923 F.2d 51, 53 (5th Cir.), cert. denied, 501 U.S. 1235, 111 S.Ct. 2863 (1991). The Court finds that the claims set forth in the case at bar have no arguable basis in law or fact.
For the foregoing reasons, Defendants' motion for summary judgment is GRANTED and Plaintiff's complaint is hereby dismissed with prejudice and as frivolous pursuant to 28 U.S.C. § 1915(e)(2)(B)(i).
A copy of this order shall be transmitted to Plaintiff and to Counsel for Defendants.
SO ORDERED.