Opinion
CIVIL ACTION NO. 4:03-CV-142-BE
October 7, 2003
MEMORANDUM OPINION AND ORDER
Pending before the court is a Motion for Summary Judgment filed by Defendants Clyde Thomas and Steve Hickman on August 13, 2003.
A. FACTS
The following facts are set out in the summary judgment motion and supporting affidavits: On October 13, 2001, Thomas and Hickman were employed as police officers for the City of Watauga, Texas. At approximately 2:50 p.m., officers were dispatched to a medical emergency, a possible heart attack, at a residence in the city. Thomas was the first officer to arrive at the house, along with the local ambulance service. Thomas walked to the front door with one of the responding paramedics, and through the glass storm door saw a man (Nelson) running directly towards the door. Nelson ran out of the door, and with his left hand struck Thomas in the left shoulder and arm and pushed the paramedic with his right hand. Nelson yelled, "Get back!," and using obscenities, told the men to leave and said, "We'll take her." Nelson continued to run toward the passenger side of a truck parked outside the house, but encountered Hickman who had arrived in the meantime and witnessed Nelson shoving or hitting Thomas and the paramedic. Hickman moved to intercept Nelson, who ran into Hickman. Nelson and Hickman struggled, and both men fell to the ground. Nelson continued to resist, swinging his hands and arms violently. Hickman struck Nelson two or three times in the shoulder and neck. Thomas then intervened and assisted Hickman by restraining Nelson's arms and fists. The officers turned Nelson onto his stomach and handcuffed him, then Thomas transported Nelson to the jail. The entire encounter was over in about thirty seconds.
Nelson filed this action on February 23, 2003 seeking damages against the City of Watauga and the police officers, individually, for violating 42 U.S.C. § 1983 and 1988, the First, Fourth and Fourteenth Amendments, comparable provisions in the state constitution, and Texas common law.
Defendants Hickman and Thomas assert that they are entitled to summary judgment on all claims against them on grounds of qualified or official immunity. Plaintiff was granted an extension of time to September 17, 2003 in which to file a response to the motion for summary judgment, but no response was timely filed with the court. No response was filed on the scheduled deadline. After two weeks passed, the court initiated a telephone call to plaintiffs counsel, who indicated that they were under the impression that this was a matter for "joint submission." There is no order in this action directing the parties to file a dispositive motion in the form of a joint submission, nor is that the practice directed by the local rules. Plaintiffs counsel forwarded a copy of their response to the court on October 3, 2003, but the court finds no legitimate excuse for the belated filing and will not consider the response when determining the existence of qualified immunity.
The court is concerned that the response, in addition to being untimely, corresponds with few details in the version of the facts that the Plaintiff presented in his Complaint.
B. STANDARD OF REVIEW
Summary judgment is appropriate if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that 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, 322, 106 S.Ct. 2548, 2552, 91 L.Ed.2d 265 (1986); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247, 106 S.Ct. 2505, 2509-10, 91 L.Ed.2d 202 (1986). The court views all of the evidence and inferences therefrom in the light most favorable to the nonmovant. Hibernia Nat'l Bank v. Carner, 997 F.2d 94, 97 (5th Cir. 1993).
The movant bears the initial burden of showing that no genuine issue of material fact exists, but once the movant makes such a showing, the burden shifts to the nonmovant to produce competent summary judgment evidence of the existence of a genuine issue of material fact. Anderson, 477 U.S. at 256-57, 106 S.Ct. at 2514, 91 L.Ed.2d 202. An issue is genuine if there is sufficient evidence for a reasonable jury to return a verdict in favor of the nonmovant. Id. at 248, 106 S.Ct. at 2510. A fact is material if its resolution would affect the outcome of the suit under the governing law. Id.
C. DISCUSSION
1. Federal Claims
Nelson alleges that the officers and the city violated his right to be free from the use of excessive force and unreasonable seizure as guaranteed by the Fourth Amendment, and his right to due process of law under the Fourteenth Amendment. Hickman and Thomas assert that they are entitled to summary judgment on grounds of qualified immunity.
Section 1983 in Title 42 of the United States Code creates a damages remedy for the violation of federal constitutional or statutory rights. Although the section contains no immunity provision, the applicability of qualified immunity in Section 1983 actions is well settled. Cousin v. Small, 325 F.3d 627, 631 (5th Cir. 2003).
There is no dispute that Hickman and Thomas were acting in the course and scope of their employment as police officers for the City of Watauga when they responded to a medical emergency. Under the doctrine of qualified immunity, government officials performing discretionary functions are shielded from the burden of litigation and liability insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known. Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 2738, 73 L.Ed.2d 396 (1982); Fraire v. Arlington, 957 F.2d 1268, 1273 (5th Cir. 1992). Applicability of the defense of qualified immunity is a question of law. Mitchell v. Forsyth, 472 U.S. 511, 528, 105 S.Ct. 2806, 86 L.Ed.2d 411 (1985).
In reviewing a defendant's claims of immunity, the court must first determine whether the plaintiff has alleged the violation of a constitutional right. Glenn v. City of Tyler, 242 F.3d 307, 312 (5th Cir. 2001); Hale v. Townley, 45 F.3d 914, 917 (5th Cir. 1995). If the plaintiff has alleged a constitutional violation, the court must decide if the challenged conduct was objectively reasonable in light of clearly established law at the time that the conduct occurred. Glenn, 242 F.3d at 312; Hale, 45 F.3d at 917. The court inquires 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. Corpus Christi, 202 F.3d 730, 736 (5th Cir. 2000). This means that even law enforcement officials who mistakenly commit a constitutional violation are entitled to immunity if their conduct was reasonable. Id.
It is well established now, and was at the time of Nelson's arrest, that individuals have a federally protected right to be free from unlawful arrest and detention resulting in a significant restraint of liberty, and violation of this right may be grounds for suit under 42 U.S.C. § 1983. Duckett v. City of Cedar Park, 950 F.2d 272, 278 (5th Cir. 1992). See generally Baker v. McCollan, 443 U.S. 137, 144-45, 99 S.Ct. 2689, 2694-95, 61 L.Ed.2d 433 (1979). Accordingly, Nelson's claim of a wrongful arrest satisfies the first prong of the court's inquiry; therefore, the existence of immunity hinges on the objective reasonableness of the officers' actions.
The Fourth Amendment requires that an arrest be supported by a properly issued arrest warrant or probable cause. See Glenn v. City of Tyler, 242 F.3d 307, 313 (5th Cir. 2001). The summary judgment evidence establishes that Nelson struck Thomas, who was in uniform, and the paramedic responding to a 9-1-1 call, and that this contact was witnessed by Hickman. In Texas, a peace officer may arrest an offender without a warrant for any offense committed in his presence or within his view. TEX. CODE CRIM. PRO. art. 14.01(b) (Vernon 1977). A person commits an assault as defined by Texas criminal law if he
(1) intentionally, knowingly, or recklessly causes bodily injury to another, including the person's spouse;
(2) intentionally or knowingly threatens another with imminent bodily injury, including the person's spouse; or
(3) intentionally or knowingly causes physical contact with another when the person knows or should reasonably believe that the other will regard the contact as offensive or provocative.
TEX. PENAL CODEANN. § 22.01 (Vernon 2003). Accordingly, the officers could reasonably have believed they had probable cause to arrest Nelson for assaultive conduct. The court does not use hindsight to second-guess officers who must act on the spur of the moment and exercise reasonable discretion given the circumstances as presented at the time. Glenn, 242 F.3d at 313.
As for Nelson's claim of excessive force, he must demonstrate (1) an injury, (2) resulting directly and only from the use of forces that was excessive to the need, and (3) the force used was objectively unreasonable. Glenn, 242 F.3d at 314; Goodson, 202 F.3d at 740. There is no evidence that Thomas struck Nelson at any time, and only aided Hickman by rolling Nelson onto his stomach and handcuffing his wrists. Although Hickman admits striking Nelson two or three times in the jaw, Hickman asserts he did so in an attempt to subdue Nelson after Nelson continued to struggle with the officer, and that he used the minimal force he felt was necessary given Nelson's conduct. There is no evidence contradicting Hickman's recollection of the incident, which was not an extended encounter and apparently ended within thirty seconds. Although viewed in the light most favorable to Nelson, the evidence is insufficient to raise a question about the officers' use of excessive force.
In his complaint, Nelson alleged he sustained a black eye, a busted lip, and bruises, but he has failed to respond to the police officers' motion for summary judgment with argument or evidence of any injuries. Even his belated response attributes no particular injury to the officers' conduct.
Officers Hickman and Thomas are entitled to qualified immunity to the extent Nelson alleges that his civil rights were violated due to an unlawful arrest or the use of excessive force in effectuating the arrest.
Nelson's complaint includes an assertion that the Defendants are jointly and severally liable for violating the First Amendment. U.S. CONST, amend. I. In order to establish infringement of First Amendment rights to support liability under § 1983, evidence must be offered that the plaintiff engaged in speech, expressive conduct, or association, and the identified speech, conduct, or association must be of the kind considered protected. See R. A. V. v. City of St. Paul, 505 U.S. 377, 384, 112 S.Ct. 2538, 2542, 120 L.Ed.2d 305 (1992); Texas v. Johnson, 491 U.S. 397, 404, 109 S.Ct. 2533, 2539, 105 L.Ed.2d 342 (1989). Nelson has not explained what protected expressive conduct or association was allegedly infringed by his confrontation with the police officers and emergency response personnel who had been called to the home. Regardless, as discussed in the body of this opinion, the officers had probable cause to effectuate his arrest given his assault on the officers and medical personnel.
2. State Law Claims
Nelson alleges that the officers and the city violated his right to be free from the use of excessive force and unreasonable seizure as guaranteed by Article 1, Sections 9 and 13, of the Texas Constitution, and subjected him to cruel, excessive, and unusual punishment. He also accuses both Hickman and Thomas of assault for striking him in the face.
Article I, Section 9 reads:
The people shall be secure in their persons, houses, papers and possessions, from all unreasonable seizures or searches, and no warrant to search any place, or to seize any person or thing, shall issue without describing them as near as may be, nor without probable cause, supported by oath or affirmation.
TEX. CONST, art. 1, § 9.
Article I, Section 13 reads:
Excessive bail shall not be required, nor excessive fines imposed, nor cruel or unusual punishment inflicted. All courts shall be open, and every person for an injury done him, in his lands, goods, person or reputation, shall have remedy by due course of law.
TEX. CONST. art. 1, § 13.
Texas law grants official immunity to an officer (1) performing discretionary duties; (2) in good faith; and (3) while acting within the scope of his authority. City of Lancaster v. Chambers, 883 S.W.2d 650, 653 (Tex. 1994). As discussed supra, the officers were acting within the scope of their employment in responding to the emergency call, and were exercising discretionary authority while at the scene. See generally Tamez v. City of San Marcos, 118 F.3d 1085, 1097 (5th Cir. 1997) (discussing the distinction between discretionary and ministerial duties under Texas law). Additionally, the good faith element for purposes of official immunity is considered substantially the same as the federal test for qualified immunity, and asks whether a reasonable official could have believed his conduct was lawful in light of clearly established law and the information possessed by the official at the time the conduct occurred. Austin v. Johnson, 328 F.3d 204, 210-211 (5th Cir. 2003). See also Cantu v. Rocha, 77 F.3d 795, 804 (5th Cir. 1996). As with qualified immunity, summary judgment is an appropriate vehicle for deciding official immunity. Austin, 328 F.3d at 211 n. 12.
State law authorizes a police officer to arrest a person for an offense witnessed by the officer, and Texas peace officers are authorized to use force as reasonably necessary to effectuate the arrest. TEX. CODE CRIM. PRO. arts. 14.01(b), 15.24 (Vernon 1977); TEX. PENAL CODE ANN. § 9.51(a) (Vernon 2003). The evidence demonstrates that it was objectively reasonable for the responding officers to believe that probable cause existed for Nelson's arrest. Additionally, the defendants have made a credible showing that a reasonably prudent officer in the same circumstances could have believed that the degree of force used was necessary. Cf. Victory v. Bills, 897 S.W.2d 506, 509 (Tex.App.-El Paso 1995, no writ), cited in Gardner v. Hill, 195 F. Supp.2d 832, 839 (E.D.Tex. 2001). Nelson has presented no contrary evidence to raise a genuine fact issue with regard to the lawfulness of his arrest or the amount of force used to secure his arrest. Hickman and Nelson are entitled to official immunity with respect to Nelson's state law claims of unlawful arrest, excessive force, and assault.
Accordingly, it is ORDERED that Defendants Clyde Thomas and Steve Hickman's Motion for Summary Judgment is granted. Nelson's federal and state law claims and causes of action against Thomas and Hickman individually are barred under the doctrines of qualified and official immunity.