Opinion
No. 3:02-CV-1417-P
December 4, 2003
MEMORANDUM OPINION AND ORDER
Now before the Court are the following motions:
1. Defendants' Motion for Summary Judgment, filed August 18, 2003;
2. Plaintiff's Rule 7(A) Reply to Defendant Samuel McDonnold et al, Assertion of Qualified Immunity, filed September 4, 2003;
3. Defendants' Reply to Plaintiff's Rule 7(a) Reply to Defendants' Assertion of Qualified Immunity, filed September 12, 2003;
4. Plaintiff's Motion for Summary Judgment, filed September 19, 2003; and
5. Defendants' Response to Plaintiff's Motion for Summary Judgment, filed September 24, 2003.
BACKGROUND
Plaintiff, an African American, filed this lawsuit against the City of Dallas ("City") and the following individual police officers of the Dallas Police Department ("DPD"): Samuel McDonnold, Leslie Reese, Marvin Ned and Michael Bricker. In his Complaint, Plaintiff alleges that Defendants committed constitutional violations as well as assault when the officers arrested Plaintiff on July 5, 2000.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 any disputed issues of fact is correct. See Eastman Kodak Co. v. Image Technical Services, Inc., 504 U.S. 451, 456 (1992). The Court recognizes that the officers adamantly deny most of Plaintiff's allegations, particularly the use of racial epithets and excessive force during the arrest. However, Defendants move for summary judgment. Thus, for purposes of this Motion, the Court must accept as true Plaintiff's version of the facts, which are set forth below.
Around 7:45 a.m. on July 5, 2000, Plaintiff's wife flagged down officers McDonnold and Bricker, who were driving down Ledbetter Drive in South Oak Cliff. (Pl.'s Resp. at 3.) The officers pulled into the Texaco station and discovered that an automobile accident had recently occurred in the parking lot. (Pl.'s Resp. at 3.) Apparently, Plaintiff's wife witnessed another driver hit Plaintiff's parked car while he was inside the Texaco station. (Pl.'s Resp. at 3.) The only resulting damage was "a small scratch" on Plaintiff's car. (Pl.'s Resp. at 3.)
While officers McDonnold and Bricker were investigating the accident scene, Plaintiff claims that they acted prejudicially toward Plaintiff and his wife based on their race. For example, Plaintiff alleges that officer Bricker told Plaintiff's wife to "get away from the car lady" after referring to the driver of the other car "who appeared to be Indian" as "Mrs." (Pl.'s Resp. at 3, Defs.' Mot. Summ. J. at 2.) As a result, Plaintiff asked if both officers were prejudiced, and while walking toward Plaintiff with their hands on their guns, they responded, "there goes that black shit again." (Pl.'s Resp. at 4.)
A few minutes later, Plaintiff explained to the officers that he needed to let his co-workers into the school where he worked. (Pl.'s Resp. at 4.) Since Plaintiff did not witness the accident, officer McDonnold gave Plaintiff permission to leave. (Defs.' Mot. Summ. J. at 2.) After letting his co-workers into the building, Plaintiff returned to the Texaco Station to see if his wife was finished speaking with the officers. (Pl.'s Resp. at 4.)
Since she was still talking to the officers, Plaintiff told his wife to meet him at the school when she was finished and Plaintiff went back to work. (Pl.'s Resp. at 4.) On his way back to work, he heard a "funny honking" sound coming from behind and noticed that it was officers Bricker and McDonnold. (Pl.'s Resp. at 4.) Plaintiff continued to drive a few feet and then pulled into the school. (Pl.'s Resp. at 4.) Once at the school, he gave his building keys to Ms. Shelly, one of Plaintiff s employees, and proceeded back toward his car. (Pl.'s Resp. at 4, Defs.' App. at 57.) At Plaintiff's car, Officer McDonnold asked him for his driver's license. (Pl.'s Resp. at 4.) Plaintiff asked officer McDonnold if he was under arrest, legally detained, or did he commit a traffic offense, and Officer McDonnold replied no. (Pl.'s Resp. at 4.)
Upon questioning his need to see Plaintiff's driver's license, officer McDonnold threatened to spray Plaintiff with OC spray or charge him with Failure to Identify. (Pl.'s Compl. at 4-5.) Then Plaintiff "stated the law to officer McDonnold about Failure to Identify." (Pl.'s Resp. at 4.) Officer McDonnold responded that since he was a witness to an accident, Plaintiff must show him his driver's license. (Pl.'s Resp. at 5.) Plaintiff again explained to the officers that he did not witness the accident. (Pl.'s Resp. at 5.) Nevertheless, Plaintiff gave officer McDonnold his license and after running a check on Plaintiff's license, officer McDonnold arrested him for outstanding warrants. (Pl.'s Resp. at 5.)
According to officer McDonnold, he stated that he made the decision to arrest Plaintiff for Evading Detention, but due to Plaintiff's size, he waited until officers Ned and Reese arrived before he arrested Plaintiff. (Defs. Mot. Summ. J. at 4.) In his affidavit, officer McDonnold explains: "I had determined that Mr. Mitchell was going to be arrested for evading detention and I was trying to stall until our cover officers arrived. I had evaluated the situation and determined because of Mr. Mitchell's size and attitude, officer Bricker and I were not going to be able to arrest Mr. Mitchell without assistance, however, I did not tell Mr. Mitchell he was going to be arrested, instead to gain time, I discussed with him why he should provide a driver's license." (Defs. Mot. Summ. J. at 4.) 02-1417
Plaintiff claims that the officers used excessive force in trying to fit Plaintiff into the police car. (Pl.'s Compl. at 5.) Plaintiff claims that officer McDonnold twisted Plaintiff's arm in an attempt to force him into the back seat of the police car. (Pl.'s Resp. at 5.) Officer McDonnold also pushed his fist in Plaintiff's rib cage "as hard as he possibly could." (Pl.'s Resp. at 5.) Plaintiff screamed at officer McDonnold that he would voluntarily enter the police car if he physically could, but he simply could not due to "his morbid obesity." (Pl.'s Resp. at 5, Pl.'s Compl. at 9.) A few moments later, officers Ned and Reese arrived to assist officer McDonnold in arresting Plaintiff. (Pl.'s Resp. at 5.) According to Plaintiff, officers McDonnold, Ned, and Reese "almost broke his wrist" by twisting his arm in an attempt to fit him into the police car. (Pl.'s Resp. at 5.) Laughing at Plaintiff, the officers stated "it's not our fault you're so damn big" and put Plaintiff in the front seat. (Pl.'s Resp. at 5.)
Plaintiff was arrested for Evading Arrest, Failure to Identify, and outstanding warrants, and spent two days in jail. (Defs.' Mot. Summ. J. App. at 6.) Plaintiff pled no contest to Failure to Identify due to financial hardship. (Pl.'s Resp. at 2; Defs.' Mot. Summ. J. App. at 17.) Plaintiff served time for the offense of Failure to Identify and for the outstanding warrants. (Defs.' App. at 139.)
Plaintiff eventually filed a complaint with the DPD. (Defs.' App. at 3.) The DPD conducted an internal investigation on October 9, 2000 and determined that Plaintiff's allegations of the officers' use of profanity, racial slurs, and unnecessary force during his arrest were inconclusive. (Defs.' App. at 59-63.) On November 30, 2000, the Deputy Chief of Police of Internal Affairs Investigation requested that the District Attorney ("D.A.") dismiss Plaintiff's Evading Arrest charge, because Plaintiff's conduct did not meet the elements of the offense. (Defs.' App. at 200.) Accordingly, the D.A. dropped the Evading Arrest charge against Plaintiff on December 4, 2000. (Defs.' App. at 139.)
Then, the DPD conducted another internal investigation on January 24, 2001. (Defs.' App. at 130-149.) This internal investigation revealed that both Officer McDonnold and Bricker engaged in conduct that may have a tendency to lower public confidence by making an inappropriate arrest. (Defs.' App. at 142-144.) It appears that the Failure to Identify charge was determined by Internal Affairs to be invalid, because the charge did not comply with the following Patrol Bureau's Standard Operating Procedure:
The General Orders, 302.03, Investigation of Minor Accidents, states:
A. The investigating officer will complete an Accident Report Form ST-3 for any minor accident when:
1. Any person involved in the accident is injured or claims injury.
2. There is damage to public or private property other than the involved or damaged.
3. An unattended vehicle is involved or damaged.
4. Any criminal action, other than the issuance of citations for "No Operators License" and "No Liability Insurance" is involved. This will include, but is not limited to, FRA, FLIED, DWI, or when a stolen vehicle is involved. As a rule, officers will investigate FLIED and FORA accidents when either/or both parties have left the scene to:
a. Pursue the suspect;
b. Seek medical attention; and/or
c. Call the police from a telephone in close proximity. (Defs.' App. at 139.)
The Internal Investigation report noted the absence of any of the above situations necessitating an accident report. (Defs.' App. at 140.)
On February 6, 2001, the Chief of Police informed officers McDonnold and Bricker that they would be suspended for three days without pay for making an inappropriate arrest on July 5, 2000. (Defs.' App. at 37-42.) On this same day, the Chief of Police sent a letter to Plaintiff admitting that the investigation established a violation of departmental rules or other issues. (Defs.' App. at 44.) On August 14, 2001, Ramon Miguel, Assistant City Manager, heard officer McDonnold's appeal of the reprimand issued by DPD and reduced the disciplinary action from a three day suspension to a written reprimand. (Defs.' App. at 46.) Plaintiff filed a lawsuit against Defendants on July 5, 2002.
Plaintiff's Motion for Summary Judgment
Defendants filed their Motion for Summary Judgment on August 18, 2003. Within 20 days, Plaintiff filed "Plaintiff's Rule 7(A) Reply to Defendant Samuel McDonnold et al, Assertion of Qualified Immunity." Because Plaintiff did not include the word "response" in the title of this motion, Defendants were not certain as to whether Plaintiff intended this document to be a response to Defendants' Motion for Summary Judgment or a new motion. As a result, in responding to "Plaintiff's Rule 7(A) Reply to Defendant Samuel McDonnold et al, Assertion of Qualified Immunity," Defendants requested that the Court grant their Motion for Summary Judgment because Plaintiff failed to timely respond, or in the alternative, consider this their Reply in support of their Motion for Summary Judgment.
Then, a week later Plaintiff filed his Motion for Summary Judgment. In his Motion for Summary Judgment, Plaintiff argues that he did in fact timely file a Response and explains that he intended this Rule 7(A) Reply to be his Response to Defendants' Motion for Summary Judgement. Thus, it seems that Plaintiff filed a Motion for Summary Judgment for the sole purpose of informing the Court that Plaintiff had indeed timely filed a Response to Defendant's Motion for Summary Judgment.
However, 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). Since Plaintiff's Motion for Summary Judgment does not address whether genuine fact issues exist, he is not entitled to summary judgment. However, the Court will consider Plaintiff's Rule 7(A) Reply to Defendant Samuel McDonnold Et Al, Assertion of Qualified Immunity to be his Response to Defendant's Motion for Summary Judgment ("Response").
For the reasons set forth above, the Court DENIES Plaintiff's Motion for Summary Judgment.
DEFENDANTS' MOTION FOR SUMMARY JUDGMENT
I. Legal Standard of Review.
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©); Chelates Corp., 477 U.S. at 323. 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. Chelates Corp., 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 non-movant fails to provide a 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. Discussion.
A. Officers' Affirmative Defense of Qualified Immunity.
Defendants claim that the officers are entitled to qualified immunity for all of Plaintiff's constitutional claims. (Defs.' Mot. Summ. J. at 18.) Accordingly, the Court must engage in a qualified immunity analysis.
1. Legal Standard.
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." Harlaw 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). First, a court must determine whether the plaintiff has alleged the violation of a clearly established constitutional right. Goodson v. City of Corpus Christi, 202 F.3d 730, 736 (5th Cir. 2000). "Second, if the plaintiff has alleged a constitutional violation, the court must decide if the conduct was objectively reasonable in light of clearly established law at the time that the challenged conduct occurred." Id. "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." Goodson v. City of Corpus Christi, 202 F.3d 730, 736 (5th Cir. 2000).
"This means that even law enforcement officials who reasonably but mistakenly commit a constitutional violation are entitled to immunity." City of Tyler, 242 F.3d at 307, (quoting Hunter v. Bryant, 502 U.S. 224, 227 (1991)). "The qualified immunity standard `gives ample room for mistaken judgments' by protecting `all but the plainly incompetent or those who knowingly violate the law.'" Hunter, 502 U.S. at 229 (quoting Malley v. Briggs, 475 U.S. 335, 343 (1986)).
2. Unlawful Warrantless Arrest.
Plaintiff alleges that the officers violated his constitutional rights by unlawfully arresting him for Failure to Identify and Evading Arrest. (Pl.'s Resp. at 7.) The Court will address each charge in turn.
The Supreme Court has held that "in order to recover damages for allegedly unconstitutional conviction or imprisonment, or for other harm caused by actions whose unlawfulness would render a conviction or sentence invalid, a § 1983 plaintiff must prove that the conviction or sentence has been reversed on direct appeal, expunged by executive order, declared invalid by a state tribunal authorized to make such determination, or called into question by a federal court's issuance of a writ of habeas corpus." Heck v. Humphrey, 512 U.S. 477, 486-487 (1996). Accordingly, "a claim for damages bearing that relationship to a conviction or sentence that has not been so invalidated is not cognizable under § 1983." Id. at 487.
Here, Plaintiff pled no contest to Failure to Identify, paid a fine, and has not presented any evidence indicating that his conviction has been reversed, expunged, declared invalid, or called into question by a writ of habeas corpus. (Defs.' App. Mot. Summ. J. at 17.) Thus, Plaintiff's unlawful arrest claim for Failure to Identify is not cognizable under § 1983, and Defendants are entitled to summary judgment on this claim.
The Court must next address Plaintiff's claim of unlawful arrest for Evading Arrest. (Pl.'s Resp. at 7.) "The Fourth Amendment requires that an arrest be supported by a properly issued arrest warrant or probable cause." City of Tyler, 242 F.3d at 313. Officer McDonnold is entitled to qualified immunity for the arrest if a reasonable officer in his position could have believed that he had probable cause to arrest Plaintiff. Id. "Probable cause exists when the facts and circumstances within the arresting officer's personal knowledge . . . are sufficient to occasion a person of reasonable prudence to believe an offense has been committed." Evett v. Deep E. Tex. Reg'l Narcotics Trafficking Task Force, 330 F.3d 681, 688 (5th Cir. 2003).
The D.A. dropped the Evading Arrest charge against Plaintiff. (Defs.' App. Supp. Resp. at 139.) Since Plaintiff was not convicted of Evading Arrest, the holding in Heck v. Humphrey does not bar Plaintiff's claim of unlawful arrest for Evading Arrest.
It is undisputed that officer McDonnold was the arresting officer. (Defs.' App. Mot. Summ. J. at 4, 9; Pl.'s Resp. at 5.) However, the parties' versions of the facts surrounding the arrest vary significantly. According to officer McDonnold, he believed that he needed to complete an accident report because Plaintiff's wife insisted that Plaintiff had witnessed the accident. (Defs.' App. Mot. Summ. J. at 3.) The accident report required Plaintiff's identification. (Defs.' App. Mot. Summ. J. at 3.) So, officer McDonnold requested Plaintiff's identification; but instead of providing it, Plaintiff drove off. (Defs.' App. Mot. Summ. J. at 3.) However, Plaintiff's wife denies that she told officer McDonnold that Plaintiff witnessed the accident. (Defs.' App. Supp. Resp. at 90.) Furthermore, Plaintiff claims that neither officer McDonnold nor officer Bricker asked him for his driver's license at the Texaco Station. (Defs.' App. Supp. Resp. at 73.)
Thus, a material fact dispute exists as to whether Plaintiff's wife stated that Plaintiff witnessed the accident and as to whether officer McDonnold asked for Plaintiff's identification. As a result of this factual dispute, the Court cannot determine whether officer McDonnold had probable cause to arrest Plaintiff for Evading Arrest. Therefore, officer McDonnold is not entitled to summary judgment on Plaintiff's claim of unlawful arrest for Evading Arrest.
However, Plaintiff fails to allege sufficient involvement by officers Bricker, Ned, and Reese to lay a similar foundation for recovery under § 1983. Officer McDonnold made the decision to pursue and arrest Plaintiff, whereas officers Bricker, Ned, and Reese only assisted officer McDonnold in the arrest based on his request for help. (Defs.' App. Mot. Summ. J. at 4, 9.) Therefore, officers Bricker, Ned, and Reese are entitled to summary judgment on this claim.
In his affidavit officer Bricker explains: "The next event I recall is when officer McDonnold was yelling for Mr. Mitchell to stop his car and then officer McDonnold indicated we needed to follow Mr. Mitchell. As a police officer I must rely on the information given and decisions made by other officers, so I did not question officer McDonnold's initial decision to pursue Mr. Mitchell . . . Officer McDonnold did tell me that Mr. Mitchell had refused to provide identification for the accident report and sped off from the Texaco parking lot. . . . Officers Ned and Reese arrived as our cover and officer McDonnold placed Mr. Mitchell under arrest." (Defs.' App. Mot. Summ. J. at 9).
3. Malicious Prosecution.
Plaintiff alleges that Defendants falsely charged him with Failure to Identify and Evading Arrest. (Pl.'s Compl. at 8.) The Fifth Circuit has held that a clearly established constitutional right protects individuals from malicious prosecutions. See Price v. Roark, 256 F.3d 364, 370 (5th Cir. 2001); Eugene v. Alief Indep. Sch. Dist., 65 F.3d 1299, 1305 (5th Cir. 1995); Shaw v. Garrison, 467 F.2d 113, 120 (5th Cir. 1972).
"While the existence of a constitutional tort of malicious prosecution has been questioned, the claim currently remains cognizable in this circuit." Keko v. Hingle, 318 F.3d 639, 642 (5th Cir. 2003).
Thus, the Court must next determine whether Plaintiff established a violation of this clearly established constitutional right. The elements for malicious prosecution are as follows: "(1) a criminal action commenced against the plaintiff; (2) the prosecution was caused by the defendants or with their aid; (3) the action terminated in plaintiff's favor; (4) the plaintiff was innocent; (5) the defendants acted without probable cause; (6) the defendants acted with malice; and (7) the criminal proceeding damaged the plaintiff." Castellano v. Fragozo, 311 F.3d 689, 699-700 (5th Cir. 2003).
Regarding the Failure to Identify charge, Plaintiff fails to allege the violation of a malicious prosecution claim, because the action did not terminate in Plaintiff's favor. To the contrary, Plaintiff pled no contest to the Failure to Identify charge and paid a fine. Plaintiff also fails to provide any evidence showing that the conviction has been reversed or otherwise terminated in Plaintiff's favor. Thus, Defendants are entitled to summary judgment on Plaintiff's claim of malicious prosecution for Failure to Identify.
Next the Court turns to Plaintiff's charge of Evading Arrest. Here, Plaintiff can establish a violation of malicious prosecution. The D.A. dropped the Evading Arrest charge against Plaintiff. (Defs.' App. Supp. Resp. at 139.) Thus, the criminal action terminated in Plaintiff's favor. Furthermore, a factual dispute prevents the Court from determining whether officer McDonnold had probable cause to arrest Plaintiff for Evading Arrest. Therefore, officer McDonnold is not entitled to summary judgment.
As explained in the Unlawful Arrest section of this Order, the Court cannot determine whether officer McDonnold had probable cause to arrest Plaintiff, because there is a dispute as to whether Plaintiff's wife told officer McDonnold that Plaintiff had witnessed the accident and whether officer McDonnold asked Plaintiff for his identification at the Texaco. Therefore, the Court cannot decide as a matter of law whether officer McDonnold had probable cause to arrest Plaintiff.
However, Plaintiff once again fails to allege sufficient involvement by officers Bricker, Ned, and Reese to lay a similar foundation for recovery under § 1983. Officer McDonnold made the decision to pursue and arrest Plaintiff, whereas officers Bricker, Ned, and Reese only assisted officer McDonnold in the arrest based on his request for help. (Defs.' App. Mot. Summ. J. at 4, 9.) Therefore, officers Bricker, Ned, and Reese are entitled to summary judgment on this claim.
4. Equal Protection and Racial Discrimination.
Plaintiff alleges that the officers violated his constitutional right to equal protection. (Pl.'s Compl. at 8.) "The Equal Protection Clause directs that all persons in similar circumstances shall be treated alike." Plyer v. Doe, 457 U.S. 202, 216 (1982). "To state a claim under the Equal Protection Clause, a § 1983 plaintiff must allege that a state actor intentionally discriminated against the plaintiff because of membership in a protected class." Williams v. Bramer, 180 F.3d 699, 705 (5th Cir. 1999) (quoting Johnson v. Morel, 876 F.2d 477, 479 (5th Cir. 1989)). "The question in the equal protection context, however, is not just whether the conduct is racially motivated but also whether that action deprives a person of `equal protection of the laws.'" Williams, 180 F.3d at 706. Thus, the Court must determine "whether the conduct at issue amounts to discrimination in violation of the Equal Protection Clause." Williams, 180 F.3d at 705.
Plaintiff alleges that the officers' actions "were based on an animus toward and/or racial profiling of minorities and especially those minority individuals who they perceived as presenting a challenge to their authority . . ." (Pl.'s Compl. at 3, ¶ 9.) Although Plaintiff fails to specify exactly how the officers intentionally discriminated against him based on his race, Plaintiff does cite several instances where the officers allegedly used racial epithets. For example, Plaintiff claims that officers Bricker and McDonnold said "there goes that black shit again," that officer Ned yelled "get into the car nigger," and that officers Ned and Reese stated that "it was too early in the morning to act like a nigger." (Pl.'s Compl. at 6, Pl.'s Resp. at 4-5.)
While the Fifth Circuit has held that the use of racial epithets alone does not amount to a constitutional violation of equal protection, Williams, 180 F.3d at 706, the Fifth Circuit has implied that "racial epithets that accompany harassment or a violation of established rights may amount to a separate equal protection violation." Kaufman County, 343 F.3d 689, 708 (5th Cir. 2003). Thus, "while the use of the epithet is compelling evidence of racial animus, which establishes that the officer's conduct may be motivated by race, the plaintiff must still show that the officer engaged in specific conduct that denied him equal protection of the laws." Williams, 180 F.3d at 701.
However, Plaintiff fails to present any evidence indicating that the officers' conduct deprived him of equal protection of the law. Plaintiff's bald assertion of an equal protection violation unsupported by probative evidence will not survive summary judgment. Therefore, Defendants are entitled to qualified immunity on this claim.
5. Excessive Force.
Plaintiff next claims that the officers violated Plaintiff's constitutional right to be free from excessive force when they "tried to force the Plaintiff into the back of the squad car almost breaking the Plaintiff's wrist." (Pl.'s Compl. at 9.) According to Plaintiff, the officers should have realized that due to his "morbid obesity," he could not fit in the back of the squad car. (Pl.'s Compl. at 9.)
"Where, as here, the excessive force claim arises in the context of an arrest . . ., it is most properly characterized as one invoking the protections of the Fourth Amendment, which guarantees citizens the right `to be secure in their persons . . . against unreasonable . . . seizures' of the person." Graham v. Connor, 490 U.S. 386, 394 (1989). To survive qualified immunity in the context of excessive force contrary to the Fourth Amendment, Plaintiff must show the following: "(1) an injury (2) which resulted directly and only from the use of force that was clearly excessive to the need and (3) the force used was objectively unreasonable." Williams, 180 F.3d at 703.
Accordingly, the Court must first decide whether Plaintiff suffered an injury as a result of the arrest. "The injury must be more than a de minimis injury and must be evaluated in the context in which the force was deployed." City of Tyler, 242 F.3d at 314. The Fifth Circuit has held that "handcuffing too tightly, without more, does not amount to excessive force." Id. Other courts have held that banging an inmate's head against bars without showing more injury than just a headache and punching an arrestee three times in the jaw in an attempt to subdue him do not constitute injuries within the context of excessive force.
Rader v. Lubbock County, 2003 U.S. Dist. LEXIS 11944 at 37(N.D. Tex. Apr. 25, 2003).
Nelson v. City of Watauga, 2003 U.S. Dist. LEXIS 17870 at 9 (N.D. Tex. Oct. 7, 2003).
In another Fifth Circuit case, an officer allegedly began choking a detainee in an effort to see what the detainee had under his tongue. Williams, 180 F.3d at 701. The officer did not find anything under the detainee's tongue and the detainee threatened to report the officer to internal affairs. Id. As a result of this threat, the officer allegedly began choking the detainee again. Id. The Fifth Circuit held that the alleged choking by an officer while the officer attempted to search a detainee's mouth did not constitute an injury in the context of excessive force. Id. at 704. This is because a physical confrontation is inevitable when an officer searches a detainee. Id. However, the Fifth Circuit reasoned that the second choking amounted to an injury, because the officer's choking of the detainee was motivated entirely by malice. Id. When an officer's actions are motivated by malice, an officer is not "legitimately exercising force in the performance of his duties as an officer." Id. The Court based their finding that "the second choking was motivated solely by malice" on "the absence of any valid reason for him to continue physical contact with [the detainee]." Williams v. Bramer, 186 F.3d 633, 634 (5th Cir. 1999) (on re-hearing).
Here, Plaintiff claims that the officers almost broke his wrist. (Pl.'s Compl. at 9.) As a result, Plaintiff claims that he suffered severe bruises. (Pl.'s Resp. at 6.) Thus, the Court must determine whether severe bruising constitutes an injury within the context of excessive force.
"In determining whether an injury caused by excessive force is more than de minimis," the Court focuses on the context in which that force was deployed. Williams, 180 F.3d at 703. Here, the force was deployed in the context of an arrest. Similar to searches, physical confrontation is also inevitable when an officer arrests an individual. The fact that Plaintiff experienced pain and discomfort during his arrest is not sufficient to support a claim of excessive force. Rather, the Court must determine whether the officers acted with malice. See id. at 704.
Plaintiff alleges that the officers acted with malice by stating that their actions "were based on an animus toward . . . minorities." (Pl.'s Compl. at 3.) According to Plaintiff, the force used by officer McDonnold to arrest him consisted of grabbing his arm and walking too quickly for him, twisting his arm in an attempt to fit him in the back seat of the squad car, and pushing hard against his rib cage. (Pl.'s Resp. at 5.) Officer McDonnold tried to place Plaintiff in the back seat. However, due to Plaintiff's size, he could not fit in the back seat. (Defs.' App. at 5.) Once cover officers Ned and Reese arrived, Plaintiff claims that the officers almost broke his wrists trying to force him in the back seat of the squad car. (Pl.'s Resp. at 5.) Eventually, officer McDonnold placed Plaintiff in the front seat. (Pl.'s Resp. at 5.)
While officer McDonnold claims that Plaintiff began resisting arrest and this required him to use more force to complete the arrest, Plaintiff denies resisting arrest and claims that he simply could not fit into the police car due to his size. (Defs.' Mot. Summ. J. App. at 4-5, Pl.'s Resp. at 5.) Since a factual dispute exists regarding the amount of force used by officer McDonnold and the amount of resistance, if any, used by Plaintiff, the Court must deny officer McDonnold qualified immunity on this claim.
However, Plaintiff has failed to allege sufficient involvement by officers Bricker, Ned, and Reese to lay a similar foundation for recovery under § 1983. In fact, Plaintiff states in his affidavit that "officer McDonnold was the officer applying excessive force while trying to put me into the back seat of the squad car." (Defs.' App. Supp. Resp. at 72.) Also, Plaintiff does not allege any facts indicating that officer Bricker participated in arresting Plaintiff. (Pl.'s Resp. at 5.) Furthermore, a witness to Plaintiff's arrest reported that she "did not see officer Bricker do anything." (Defs.' App. Supp. Resp. at 94.) Thus, qualified immunity will be granted to officers Bricker, Ned, and Reese on the claim of excessive force.
B. Municipal Liability.
Plaintiff asserts constitutional claims against the City. Before addressing Plaintiff's § 1983 claims against the City, the Court must first consider whether Plaintiff establishes a claim of municipal liability. This is because Plaintiff must satisfy the elements of municipal liability in order to hold the City liable for any claims under § 1983.
"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.
Plaintiff alleges that the City's practice or policy was to delay or refuse to prosecute police officers accused of police misconduct and acts of violence. (Pl.'s Compl. at 8.) "To establish liability for a policy or practice, a plaintiff must prove that (1) the local government or official promulgated a policy; (2) the decision displayed `deliberate indifference' and proved the government's culpability; and (3) the policy decision lead to the particular injury." Foust v. McNeill (In Re Foust), 310 F.3d 849, 861 (5th Cir. 2002). Plaintiff must prove that the City's alleged actions are a result of either formal policy or informal policy. Formal policy is "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). Whereas informal policy is "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.
Since Plaintiff fails to point to any official formal policy, the Court will assume that Plaintiff refers to an informal policy when alleging his causes of action against the City. "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 . . ." Padgett v. Dallas County Sheriff's Office, 2003 U.S. Dist. LEXIS 10013, 7-8 (N.D.Tex. Feb. 12, 2003) (quoting Languirand v. Hayden, 717 F.2d 220, 227-228 (5th Cir. 1983).
Plaintiff alleges that "said policies . . . called for the City of Dallas to delay . . . avoid discipling, prosecuting or in any other way to take corrective or responsive action to know incidents and/or complaints." (Pl.'s Compl. at 8.) However, Plaintiff has not presented any evidence establishing a pattern of conduct indicating that the City neglected or delayed to investigate or prosecute complaints of police misconduct. Plaintiff simply alleges that "other Police Department policies . . . called for the refusal of the City of Dallas through Internal Affairs and the Police Department to adequately man investigate and/or document complaints of police misconduct and acts of violence." (Pl.'s Compl. at 8.) Instead of providing the Court with evidence of the City's alleged refusal to discipline officers for misconduct, Plaintiff makes these vague and conclusory statements accusing the City of such conduct. However, these conclusory statements are not competent summary judgment evidence. Thus, Plaintiff's bald accusations will not support a claim of municipal liability, and the City is entitled to summary judgment.
C. Official Immunity.
Finally, Plaintiff alleges that the officers assaulted him at the time of his arrest. (Pl.'s Compl. at 8.) in response to this allegation, Defendants assert that the officers are entitled to official immunity with respect to Plaintiff's state law claim of assault. (Defs.' Mot. Summ. J. at 21.)
Since official immunity is an affirmative defense, Defendants 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 begin with, Defendants correctly assert that the officers were engaging in discretionary duties within the scope of their authority. A police officer who makes an arrest engages in a discretionary act. See City of Dallas v. Half Price Books, Records, Magazines, 883 S.W.2d 374, 376 (Tex.App.-Dallas 1994, no writ); See Dent v. Dallas, 729 S.W.2d 114, 116 (Tex.App.-Dallas 1986, writ denied). Also, "an official acts within the scope of her authority if she is discharging the duties generally assigned to her." Chambers, 883 S.W.2d at 658. Here, each officer was on duty responding to either Plaintiff's car accident or officer Bricker's call for back up. Thus, the officers were engaging in discretionary duties and acting within the scope of their authority.
Accordingly, the Court must next determine whether the officers acted in good faith. "To establish good faith, [an officer] must show that a reasonably prudent officer, under the same or similar circumstances, could have believed that his conduct was justified based on the information he possessed when the conduct occurred." Telthorster v. Tennell, 92 S.W.3d 457, 465 (Tex. 2002). "Good faith is not a mechanical inquiry, but rather turns on the particular facts presented." Id. "When an officer exceeds the bounds of reasonableness, good faith cannot be shown, and the officer will not enjoy official immunity's protection." Id. To show that the officers acted in good faith when arresting Plaintiff, Defendants point the Court to sworn affidavits of all the officers involved in this incident. An officer may establish good faith by the officer's own affidavit. See Bottoms v. City of Fort Worth, 2003 U.S. Dist. LEXIS 17384 at 13, 14 (N.D. Tex. 2003); Barker v. City of Galveston, 907 S.W.2d 879, 888 (Tex.App. — Houston [1st Dist.] 1995, writ denied).
Here, Plaintiff claims that the officers assaulted him. However, "a police officer is privileged to use force to the degree he reasonably believes is necessary to make an arrest, taking care that the force used is commensurate with the necessity." State Dep't of Pub. Safety v. Petta, 44 S.W.3d 575, 579 (Tex. 2001); See Tex. Penal Code 9.51(a). Accordingly, the officers cannot be held liable for assault if they "used no greater degree of force than reasonably necessary to arrest" Plaintiff. Petta, 44 S.W.3d at 579. Thus, this claim of assault turns on whether a reasonably prudent officer in this situation could have believed that the conduct alleged by Plaintiff was justified. Telthorster, 92 S.W.3d at 465.
However, the officers' affidavits are based on their version of the facts, not Plaintiff's version. For example, whereas Plaintiff alleges that officer McDonnold tried to force Plaintiff into the back seat of the police car by pushing against his rib cage and by almost breaking his wrist, (Pl.'s Resp. at 5.), officer McDonnold denies that he ever engaged in such conduct. (Defs.' App. Mot. Summ. J. at 5.) Officer McDonnold also claims that Plaintiff resisted arrest whereas Plaintiff's version of the facts indicate otherwise. (Defs.' App. Supp. Resp. at 69-71.)
A movant's testimony is not sufficient to meet the summary judgment burden of establishing good faith if the movant's testimony does not take into the non-movant's contrary version of the facts. This is because in the context of official immunity, fundamental factual disputes between parties can preclude summary judgment. Thus, whether officer McDonnold could have believed that the force they used to arrest Plaintiff was justifiable depends on whether officer McDonnold actually used the force alleged by Plaintiff and whether Plaintiff resisted arrest. Therefore, these material fact issues preclude summary judgment.
See Saenz v. Gonzalez, 94 S.W.3d 659, 663 (Tex.App. — San Antonio 2002, pet. denied); City of San Augustine v. Parrish, 10 S.W.3d 734, 742 (Tex.App.-Tyler 1999, pet. dism'd w.o.j.); Victory v. Bills, 897 S.W.2d 506, 509-510 (Tex.App.-El Paso 1995, no writ); Beatty v. Charles, 936 S.W.2d 28, 32 (Tex.App.-San Antonio 1996, no writ).
See Parrish, 10 S.W.3d at 742 (holding that "any testimony from a police officer would not resolve the fundamental factual conflicts between the City's version of events surrounding the shooting and [the plaintiffs'] version of events surrounding the shooting."); Victory, 897 S.W.2d at 509-510 (holding that since the parties' versions of the facts were contradictory on the issue of whether the plaintiff resisted arrest, this factual dispute precluded summary judgment.); Beatty, 936 S.W.2d at 32(holding that the "testimony, when viewed in the light most favorable to [the plaintiff], directly conflicts with a material fact necessary to show [the officer's] good faith.").
However, Plaintiff fails to allege sufficient involvement by officers Bricker, Ned, and Reese to lay a similar foundation for recovery under Plaintiff's claim of assault. In fact, Plaintiff states in his affidavit that "officer McDonnold was the officer applying excessive force while trying to put me into the back seat of the squad car." (Defs.' App. Supp. Resp. at 72.) Once again, Plaintiff does not allege any facts indicating that officer Bricker participated in arresting Plaintiff (Pl.'s Resp. at 5.) Furthermore, a witness to Plaintiff's arrest reported that she "did not see officer Bricker do anything." (Defs.' App. Supp. Resp. at 94.) Thus, the Court will grant official immunity to officers Bricker, Ned, and Reese on the claim of assault.
For the reasons set forth above, the Court GRANTS summary judgment on Plaintiff's claim of equal protection. The Court also GRANTS summary judgment on all of Plaintiff's claims against the City and against officers Bricker, Ned, and Reese. However, the Court DENIES summary judgment on Plaintiff's claim of unlawful arrest, malicious prosecution, excessive force, and assault against officer McDonnold.