Opinion
CIVIL ACTION NO. 3:00-CV-0377-G.
April 29, 2002
MEMORANDUM ORDER
Before the court is the motion of the defendants, the City of Richardson ("the City") and Bill Phillips ("Phillips") (collectively, "the defendants"), for summary judgment on the claims brought against them by the plaintiff, Angela Smith ("Smith"). For the reasons discussed below, the motion is denied.
I. BACKGROUND
Smith brought this action in a state district court on October 6, 1999. See Bill Phillips' Motion to Dismiss Pursuant to Rule 12(b)(6) ("Motion to Dismiss") ¶ 1; see also generally Plaintiffs Original Petition, attached as Exhibit 2 to Notice of Removal by the City ("Notice"). The City removed the case to this court on February 18, 2000. See generally Notice. Smith filed her amended petition on March 24, 2000. See generally Plaintiff's Amended Petition ("Petition").
The parties agree on very few facts in this case. In her petition, Smith alleges the following facts. On April 23, 1998, Phillips, a member of the Richardson Police Department, shot Smith repeatedly after responding to a call in the City of Richardson. Petition ¶ 5. According to Smith, this incident in the backyard of her parents' home occurred while she was "suffering from a mental disorder." Id. Smith's parents were not home and one of her friends called for help in an attempt to get an ambulance. Id. Phillips responded to what he characterized as a domestic disturbance call, pointing out that the call was a 911 call "involving a woman holding a shovel to a man's throat." Id.; Brief in Support of Defendants' Motion for Summary Judgment ("Motion") at 6; Declaration Under Oath of Bill Phillips ("Phillips Declaration"), located in Defendants' Appendix in Support of Their Motion for Summary Judgment and Brief in Support ("Defendants' Appendix"), at 2. In his affidavit regarding the incident, Smith's brother, Andrew Smith, explained the situation as follows:
Neither the City nor Smith has provided a summary of facts in their briefs for this motion. Thus, the court has been forced to wade through the arguments and voluminous improperly referenced appendices to ascertain the parties' versions of the facts in this case.
Aaron Haag, Stephen Daniel Price and my sister had driven over to our house at 639 Devonshire in Richardson, Texas. My sister has a history of having mental problems and she was acting strange. I called the Green Oaks Hospital to try to get information on how to get Angela admitted. They started asking questions about what she had been acting like the last few days so I gave the phone to Aaron since he had been with her during that time. Apparently Aaron understood that the fastest way to get her admitted was to call an ambulance. I don't know exactly what Aaron told the people on the phone, however a police officer that I later came to know as Bill Phillips showed up in our backyard.
Affidavit of Andrew Smith ("A. Smith Affidavit"), located in Appendix in Support of Plaintiff's Response to Defendants' Motion for Summary Judgment ("Plaintiff's Appendix"), at 1.
This citation refers to page 1 of the affidavit, not page 1 of the appendix. Neither side has complied with Local Rule 56.6(b)(3), which requires sequentially numbered pages in the appendix.
Upon arrival at the home, Phillips immediately pulled his gun and ran to the backyard, where he found Smith on her knees digging in the dirt with a stick, along with two young men. Petition ¶ 5; Phillips Declaration at 2-3.
At this point, Phillips holstered his weapon and began to talk with Smith. Petition ¶ 5; A. Smith Affidavit at 1. Smith alleges that Phillips then proceeded to verbally antagonize her to the point where she asked him to leave. Id. Andrew Smith recalls that "Angela said something along the lines of, `get out of here, leave me the fuck alone or get the fuck out of here, leave me alone.'" A. Smith Affidavit at 1. When Angela said this, Phillips allegedly backed up and unsnapped his gun holster, saying something like, "come with me." Id. at 2. Andrew Smith made the following statement about the next sequence of events:
Angela then picked up a rock and stood up. She first held the rock out in front of her and told the officer something like, "I don't want you here, get out of here, leave, get the fuck out of here." She then started toward him. When she did he started backing up. At this time the rock was still out in front of her and below shoulder level. They had almost 15 feet or so between them when she started toward him. He kept backing up and she lifted the rock and put both hands on it, holding it about shoulder level and to the right. It was almost touching her right shoulder and was in front of her.
We have a big backyard and I thought he would move around the picnic table or just stay away from her. I have since paced off the distance and he backed approximately 42 feet before he shot her. He had already unsnapped the holster and had his hand on the gun. He never tried to reach for anything else like mace or a baton. He also did not try to grab her or push her away. My sister at that time weighed around one hundred fifteen pounds. This officer looked like he was almost six feet tall and weighed close to twice her weight. Anyone in that situation, in my opinion, would have just pushed her away or grabbed the rock from her. To this day I cannot believe he shot her.
Angela never said anything that would be considered a threat, she just wanted him to leave. The Officer never told her to put the rock down, stop, halt, or anything else, he just pulled his gun and shot her.Id.
Phillips' version of these events, however, is quite different. He claims that before he could "identify any of the parties or determine the nature of the situation, [Smith] suddenly attacked [him] with a large rock raised above her head, screaming something as she directly ran toward [him]." Phillips Declaration at 3. Phillips also avers that before he fired at Smith, he "attempted to back away from her but was unable to do so because [Smith] ran so fast at [him] with the rock over her head." Id. Phillips claims that Smith gained ground on him so quickly that he had no choice but to fire at her to prevent her from killing him or causing him serious bodily harm. Id. According to Phillips, at the time he fired at Smith, he was alone, outnumbered at the scene, and had been on the scene for less than two minutes. Id. He claims that at the time he fired at Smith, he believed he was following Department policy concerning the use of force and was acting lawfully according to the training he had received. Id.
On the basis of these contested facts, Smith alleges that Phillips violated 42 U.S.C. § 1983 by denying her rights under the Fourteenth Amendment to the United States Constitution. Petition ¶ 11. Specifically, Smith charges that Phillips' use of deadly force in response to a mentally ill young girl running in his direction with a rock was clearly excessive to the need and objectively unreasonable. Id. ¶ 12. Smith further avers that Phillips violated the Texas Tort Claims Act by wrongfully using force against her. Id. ¶ ¶ 8-9.
The court previously dismissed Smith's claims under the Fourth and Eighth Amendments. Memorandum Order of July 14, 2000.
The defendants now seek summary judgment on the claims against them on the grounds that both the City and Phillips are entitled to immunity. See generally Motion.
It is unclear whether Smith still asserts claims against both defendants for intentional infliction of emotional distress. Such claims were asserted in Smith's Original Petition (filed October 6, 1999) and in her First Amended Original Petition (filed January 4, 2000) while the case was still in the state court. These petitions are attached to the Notice of Removal at Tabs 2 and 3. In Smith's Amended Petition, filed March 24, 2000 after the case was removed here, these claims were omitted. The defendants, apparently unsure whether those claims were still in the case, included them in their motion for summary judgment, see Motion at 10-11, 13, but Smith did not respond. The court understands that Smith is no longer asserting claims for intentional infliction of emotional distress, but if this understanding is incorrect, then the defendants are entitled to summary judgment on these claims, for the reasons stated in their motion.
II. ANALYSIS A. Evidentiary Burdens on Motion for Summary Judgment
Summary judgment is proper when the pleadings and evidence on file show that no genuine issue exists as to any material fact and that the moving parties are entitled to judgment as a matter of law. FED. R. CIV. P. 56(c). "[T]he substantive law will identify which facts are material." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A genuine issue of material fact exists "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Id. The movants make such a showing by informing the court of the basis of their motion and by identifying the portions of the record which reveal there are no genuine material fact issues. Celotex Corporation v. Catrett, 477 U.S. 317, 323 (1986). The pleadings, depositions, admissions, and affidavits, if any, must demonstrate that no genuine issue of material fact exists. FED. R. CIV. P. 56(c).Once the movants make this showing, the nonmovant must then direct the court's attention to evidence in the record sufficient to establish that there is a genuine issue of material fact for trial. Celotex, 477 U.S. at 323-24. To carry this burden, the "opponent must do more than simply show . . . some metaphysical doubt as to the material facts." Matsushita Electric Industrial Company, Ltd. v. Zenith Radio Corporation, 475 U.S. 574, 586 (1986). Instead, the nonmovants must show that the evidence is sufficient to support a resolution of the factual issue in their favor. Anderson, 477 U.S. at 249.
While all of the evidence must be viewed in a light most favorable to the motion's opponent, Anderson, 477 U.S. at 255 (citing Adickes v. S.H. Kress Company, 398 U.S. 144, 158-59 (1970)), neither conclusory allegations nor unsubstantiated assertions will satisfy the non-movant's summary judgment burden. Little v. Liquid Air Corporation, 37 F.3d 1069, 1075 (5th Cir. 1994) (en banc); Topalian v. Ehrman, 954 F.2d 1125, 1131 (5th Cir.), cert. denied, 506 U.S. 825 (1992).
Summary judgment in favor of the defendants is proper if, after adequate time for discovery, Smith fails to establish the existence of an element essential to her case and on which she will bear the burden of proof at trial. Celotex, 477 U.S. 322-23.
Smith has alleged the following theories of liability against each defendant: (1) liability under the Texas Tort Claims Act (to include liability for the use of excessive force) and (2) liability under 42 U.S.C. § 1983 (to include liability for excessive force). These theories will be discussed separately as to each defendant.
B. City of Richardson 1. Smith's Texas Tort Claims Act Claim
The defendants contend that summary judgment should be granted on Smith's Texas Tort Claims Act claim (including a claim for excessive force) against the City of Richardson because the record establishes Phillips' official immunity defense as a matter of law, and therefore the City is immune from suit under the doctrine of sovereign immunity. Motion at 2-3. Under Texas law, if Phillips is found to have official immunity, that finding is a bar to any Texas Tort Claims Act claim against the City. See DeWitt v. Harris County, 904 S.W.2d 650, 654 (Tex. 1995) ("[w]e hold that the county is not liable under section 101.021(2) for the negligence of its employees when the employee has no liability because of official immunity").
As for Phillips' liability, "[g]overnment 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." City of Lancaster v. Chambers, 883 S.W.2d 650, 653 (Tex. 1994). The defendants point out that the first element of official immunity — discretionary duties — exists when an action involves "personal deliberation, decision and judgment." Id. at 654. The defendants contend that this first element is established in both Smith's pleadings and in the Phillips Declaration. Motion at 3; Phillips Declaration, located in Defendants' Appendix, at 1-8. Further, the defendants assert that the third element — "acting within the scope of [his] authority" — is established in Smith's pleadings and in the Phillips Declaration. Motion at 3; Phillips Declaration, located in Defendants' Appendix, at 1-8. Indeed, Smith does not controvert Phillips on either of these points in her Plaintiffs First Amended Brief in Support of Her Response to Defendant's Motion for Summary Judgment ("Response"). See id., generally. Thus, the only remaining element of Phillips' official immunity defense is the second element — "good faith." Motion at 3.
The Texas Supreme Court, looking to federal qualified immunity law for guidance, has adopted the following test for determining an officer's good faith: "an officer acts in good faith in a pursuit case if: a reasonably prudent officer, under the same or similar circumstances, could have believed that the need to immediately apprehend the suspect outweighed a clear risk of harm to the public in continuing the pursuit." City of Lancaster, 883 S.W.2d at 656. The court agrees with the defendants' assertion that the policy behind official immunity and qualified immunity and the analysis for each is largely the same. Motion at 4; see also Harper v. Harris County, 21 F.3d 597, 600 (5th Cir. 1994) (holding that qualified immunity "protects a police officer from liability if a reasonably competent law enforcement officer would not have known that his actions violated clearly established law").
Although City of Lancaster discussed "good faith" in the context of pursuing a suspect, the context in the instant case is sufficiently similar to apply the same standard.
The City contends that Phillips' actions were objectively reasonable as a matter of law, because at all relevant times, he was acting according to his training and in self defense. Motion at 4-5. Phillips maintains that he was faced with an imminently dangerous, even possibly deadly, situation, that he was alone, was required to react quickly, and only sought to use the minimum force necessary for protection. Phillips Declaration ¶ ¶ 5-7. Moreover, Phillips claims that in the very limited time he had before Smith's assault on him required him to act, he tried to back away but could not. Id.; Exhibits "A"-"B", located in Defendants' Appendix at 5-8. Smith of course offers a different view, both in her Petition, and in the affidavit of her brother Andrew Smith, as discussed above.
In response to the City's contention, Smith offers the opinions of Mark Raines, located in Appendix in Support of Plaintiff's Response to Defendants' Motion for Summary Judgment ("Plaintiffs Appendix"), part III, and William Elliott, located in Plaintiff's Appendix, part IV. Smith has not designated either Raines or Elliott as expert or fact witnesses of any kind. See Plaintiffs Expert Disclosures, located in Defendant's Supplementary Appendix in Support of Motion for Summary Judgment and Brief in Support at 1-5. Further, both men base their opinions on unknown and unidentified facts, and Elliott goes so far as to mention what he has been "led to believe" the facts of the situation were. Affidavit of William Elliot, Plaintiffs Supplemental Appendix, part IV at 2. Neither of these affidavits meets the standard of Rule 56(e) ("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").
LR 56.5 Requirement of Brief; Briefing Requirements
The court is to determine as a matter of law if an official's acts were reasonable, and the controlling issue here is whether Phillips was reasonable in believing his actions were justified. See Lampkin v. City of Nacogdoches, 7 F.3d 430, 435 (5th Cir. 1993) (per curiam) (citation omitted), cert. denied, 511 U.S. 1019 (1994). In this case, however, there are so many disputed facts between Smith's and Phillips' versions of events that the court is unable to make a determination of the objective reasonableness of Phillips' conduct. See Mangieri v. Clifton, 29 F.3d 1012, 1016 (5th Cir. 1994) (the court must settle on a coherent view of what happened before making a determination of the reasonableness of an official's acts) (citing Lampkin, 7 F.3d at 430).
Phillips and the City may reassert their claims to qualified and official immunity at trial, see Harper, 21 F.3d at 601, but for now, the court cannot say that those defenses have been established as a matter of law.
The City further contends that summary judgment is warranted under the Texas Tort Claims Act because the record establishes Phillips' right to self defense as a matter of law. The defendants correctly point out that the law is well settled in Texas that one who acts in self defense while in reasonable apprehension of death or serious bodily injury to himself or another is not liable for the injuries or death caused by him. See Ater v. Ellis, 227 S.W. 222, 226 (Tex.Civ.App.-Amarillo 1921, writ dism'd w.o.j.). The person asserting the right of self defense, however, must honestly believe that he is in immediate danger and have a reasonable basis to support that belief. See Dallas Consolidated Electric Street Railway Company v. Pettit, 105 S.W. 42, 44 (Tex.Civ.App. — Dallas 1907, no writ); Lopez v. Allee, 493 S.W.2d 330, 334 (Tex.Civ.App.-San Antonio 1973, writ ref'd n.r.e.). As stated above, however, there are too many disputed facts between Smith's version of events and Phillips' for the court to make a determination of the objective reasonableness of Smith's actions. Thus, summary judgment on this claim is denied.
2. Smith's 42 U.S.C. § 1983 Claim
The defendants' second contention is that summary judgment should be granted on Smith's Section 1983 claim against the City because there is no evidence of an essential element of her claim: that the "deprivation of [her] constitutional right was inflicted pursuant to an official policy or custom." Motion at 7.
To establish her claim against the City, Smith must identify "(1) a policy (2) of the city's policymaker (3) that caused (4) the plaintiff to be subjected to a deprivation of constitutional right." Palmer v. City of San Antonio, Texas, 810 F.2d 514, 516 (5th Cir. 1987) (quoting Grandstaff v. City of Borger, Texas, 767 F.2d 161, 169 (5th Cir. 1985), cert. denied, 480 U.S. 916 (1987)), abrogated on other grounds in Leatherman v. Tarrant County Narcotics Intelligence Unit, 507 U.S. 163, 167 (1993). Thus, the City cannot be liable under § 1983 merely because it employed a tortfeasor. See Monell v. Department of Social Services of the City of New York, 436 U.S. 658, 691 (1978); Campbell v. City of San Antonio, 43 F.3d 973, 977 (5th Cir. 1995). Rather, "[t]he `official policy' requirement . . . make[s] [it] clear that municipal liability [under § 1983] is limited to action for which the municipality is actually responsible . . . that is, acts which the municipality has officially sanctioned or ordered." Pembaur v. City of Cincinnati, 475 U.S. 469, 479-80 (1986). The policy or custom must be "the moving force of the constitutional violation." Palmer, 810 F.2d at 516 (quoting Monell, 436 U.S. at 694).
The Fifth Circuit defines official policy as:
1. 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; or
2. 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. Actual or constructive knowledge of such custom must be attributable to the governing body of the municipality or to an official to whom that body had delegated policy-making authority. Actions of officers or employees of a municipality do not render the municipality liable under § 1983 unless they execute official policy as above defined.Webster v. City of Houston, 735 F.2d 838, 841 (5th Cir.) (per curiam), aff'd in relevant part on rehearing, 739 F.2d 993 (5th Cir. 1984) (en banc); see also Johnson v. Moore, 958 F.2d 92, 94 (5th Cir. 1992).
The plaintiff characterizes her claim against the City as failure to train and failure to supervise. Response at 11. Smith recognizes that the City had in place policies regarding the use of force and dealing with mentally ill persons, and takes no issue with the policies themselves. See Response at 7-10. Without producing any summary judgment evidence on the point, Smith attacks Phillips' assertion that he had received the standard and customary training from the City as self-serving. Id. at 10. However, outside of her conclusory assertions, Smith has failed to present any summary judgment evidence that might establish a widespread pattern of similar incidents, known to and condoned by the Richardson City Council or other policymaker, that could fulfill the Fifth Circuit's second definition of "official policy." See Fraire v. City of Arlington, 957 F.2d 1268, 1278 (5th Cir.) (citing Languirand v. Hayden, 717 F.2d 220, 227 (5th Cir. 1983), cert. denied, 467 U.S. 1215, 104 S.Ct. 2656, 81 L.Ed.2d 363 (1984)), cert. denied, 506 U.S. 973 (1992). Thus, because Smith has not produced any summary judgment evidence demonstrating an essential element of her § 1983 claim against the City — namely, the presence of an "official policy" — summary judgment on that claim is proper.
The court has considered the defendants' objection to the "irrelevant, inadmissible character evidence" offered by Smith, Defendants' Brief in Reply to Plaintiffs Response to Motion for Summary Judgment at 2, and concludes that none of the evidence to which objection was made was necessary for decision of this motion.
C. Phillips
Smith asserts against Phillips (1) a claim under the Texas Torts Claims Act, including a claim for excessive force, and (2) a claim under 42 U.S.C. § 1983, including a claim for excessive force. To establish an excessive force claim under the Fourth Amendment, Smith must produce evidence of (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. See Williams v. Bramer, 180 F.3d 699, 703 (5th Cir. 1999) (citing Johnson v. Morel, 876 F.2d 477, 480 (5th Cir. 1989) (en banc), as modified by subsequent decisions).The evidentiary analysis in support of this defense is identical to that set forth in the discussion above, at 8-12, of Phillips' official immunity defense. The court concludes that because it is unable to settle on a coherent view of what happened, it cannot make a determination of the reasonableness of Phillips' acts, and must therefore deny Phillips' motion for summary judgment on this claim. See Mangieri, 29 F.3d at 1016.
III. CONCLUSION
For the reasons discussed above, the City and Phillips' motions for summary judgment on Smith's remaining claims are GRANTED in part and DENIED in part. As a result of these rulings, Smith may pursue at a trial her claims against both defendants under the Texas Tort Claims Act and her claim against Phillips under 42 U.S.C. § 1983.
SO ORDERED.
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(c) Citations to Appendix. A party whose motion or response is accompanied by an appendix must include in its brief citations to each page of the appendix that supports each assertion that the party makes concerning the summary judgment evidence.
LR 56.6(c) (emphasis added).